State v Singh [1997] FJHC 137; HAC0017.1996S (17 September 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 0017 OF 1996

THE STATE

V

DAVENDRA SINGH

Counsel: Mr. W. Clarke for The State
Mr. A. Gates for Accused

Hearing: 16th September 1997

Decision: 17th September 1997

RULINGS OF PAIN J. ON
NOTICE OF ADDITIONAL EVIDENCE

I have heard pre-trial argument on three issues.

This trial for a charge of murder was due to commence on 15th September 1997. By notice dated 9th September 1997 the State advised the defence pursuant to Section 288 of the Criminal Procedure Code that it intended to call 4 additional witnesses at the trial. This is opposed by the defence. Argument has been heard pre-trial.

In terms of Section 288 an additional witness cannot be called unless the Accused has received reasonable notice in writing stating the name and address of the witness and the substance of the evidence the witness intends to give. It is for the Court to determine what notice is reasonable, having regard to the specific matters relating to time and circumstances as are specified in the section.

The first three proposed witnesses are medical practitioners. It is convenient to deal with them first. That requires a consideration of the background circumstances.

After the death of the alleged victim a post mortem was conducted at C.W.M. Hospital on 28th December 1994 by a pathologist Dr. Alera. Dr. Alera’s post mortem report was tendered by the investigating officer at the Preliminary Inquiry in the Magistrates Court and forms part of the record forwarded to this Court. The record also includes the briefest of statements from Dr. Alera. It is self prepared and merely states the final conclusion in the Post Mortem report, namely, that death was caused by "Subdural bleeding, Frontal parietal left severe". Clearly the intention of the prosecution was that Dr. Alera would give full evidence of the findings on post mortem examination as contained in his report. That is the common practice in these cases. Thus it would have been known to the defence that the prosecution intended to call Dr. Alera to give this evidence.

Not surprisingly, after a lapse of almost 3 years, Dr. Alera has now left Fiji. He is believed to be living in the Phillippines. Efforts have been made to contact him and arrange for his return to Fiji to give evidence in this and other cases without success. When contact has been made he has refused to return to Fiji.

Evidence of death and the cause of death is essential in homicide cases. Faced with the situation of Dr. Alera’s unavailability, the prosecution gave notice to the defence on 1st September 1997 of its intention to produce the post mortem report pursuant to S.191 of the Criminal Procedure Code without Dr. Alera being required to attend the hearing as a witness. By letter dated 2nd September 1997 counsel for the Accused advised that the attendance of Dr. Alera was required. This nullified the prosecution effort to have the report produced pursuant to S.191. Therefore the prosecution has had no alternative but to obtain other medical evidence. Difficulties were experienced in obtaining the hospital records and then in locating the medical personnel who were concerned with the treatment of the victim in hospital. The State has now given notice of an intention to call 3 hospital doctors. I deal first with Dr. Veilogavi and Dr. Kumar. Statements of both these persons have been given to the defence.

Dr. Veilogavi examined the victim when he was first brought to the Accident and Emergency Department of CWM Hospital. His statement is a relatively brief description of the condition of the victim. In particular, he gives details of injuries observed to the victim’s face. Such injuries are included in the findings detailed in the post mortem report.

Dr. Kumar saw the victim on two occasions on the day after his admission. First he treated him for an epileptic fit. This is a new matter but no specific objection has been made by the defence to this aspect of the evidence. Then later the same day he pronounced him to be dead. The fact of death accords with the post mortem report. However, the evidence of Dr. Kumar does not give any reasons for death.

I have already detailed the circumstances under which the prosecution became acquainted with the evidence of these two doctors and determined to call them as witness. As to time, the defence is critical of prosecution delays. That is in obtaining briefs of the proposed evidence and failure to give notice until 9th September 1997 with briefs following on 11th and 12th September 1997. It is said that the unavailability of Dr. Alera would have been known some time ago and earlier notice should have been given. Earlier inquiries could and perhaps should have been made because of the likely unavailability of Dr. Alera to give evidence. But the matter must be considered against the realities of investigation and prosecution in this country. In this regard we live in an idealistic but not an ideal society. Appropriate resources and competent personnel are not always available to have assignments executed speedily and efficiently. Delays seem inevitable. Experience in this Court has shown that preparation for a trial is likely to be done by both prosecution and defence as the hearing date approaches. In this case the prosecution may have been a little optimistic to expect that defence counsel would not object to the admission of the post mortem report under S.191 of the Criminal Procedure Code but it may have been seen as worth a try. However, the fact remains that, for the circumstances and reasons I have already outlined, the prosecution only recently became acquainted with the evidence of Dr. Veilogavi and Dr. Kumar and determined to call them as witnesses. Moreover, their evidence merely replaces, in part, the evidence of a witness whose testimony forms part of the committal record.

In respect of these two witnesses I am satisfied that reasonable notice has been given to the defence and the other provisions of S.288 of the Criminal Procedure Code have been satisfied. Accordingly, they can be called by the prosecution to give evidence.

The notice and proposed evidence of Dr. Krishna is different. The prosecution proposes to call him as an expert medical witness to explain the nature and effect of the injuries suffered by the deceased as disclosed in the hospital records, post mortem report and evidence of Dr. Veilogavi and Dr. Kumar. The prosecution has given a letter to the defence "advising in general terms about what evidence he will give".

It is a term of Section 288 of the Criminal Procedure Code that the notice must state the substance of the evidence to be given by the witness. In this instance the notice outlines the topics upon which the proposed witness will give evidence. This has been done quite comprehensively but it only gives notice of the nature of the proposed evidence and not the content.

I accept that the prosecution has been under the constraint of not knowing whether the post mortem report and evidence of Doctors Veilogavi and Kumar would be admitted in evidence at the trial. It has also faced the predicament of the pathologist not being available and the other difficulties I have mentioned. Nevertheless, an application under Section 288 to call an additional witness can only be entertained if the substance of the testimony is given. The substance of something is its essence or essential material. In the present context it means notice of the gist or essential content of the proposed evidence. The reason for this is that the Court and the defence must be informed of what the witness will say. Notice of the subject matter of the evidence is not sufficient. This does not mean that a fully detailed comprehensive brief of evidence is required. Only the substance is required.

The prosecution has the statements of Dr. Veilogavi and Dr. Kumar whose evidence will now be given. It also has the pathologist’s report. Dr. Krishna could surely give details of what his proposed evidence would be if it is admitted, and if the post mortem report is also admitted.

In all the circumstances I intend to reserve my final ruling on the admission of the evidence of Dr. Krishna to enable a statement of the substance of that proposed evidence to be served. I will then hear any further submissions and give a final ruling.

The notice in respect of the proposed witness Maha Ram is in an entirely different category from the proposed medical witnesses.

The record of the preliminary inquiry contains a statement from Detective Uday Chand. This states that on 26th December 1994 he interviewed the accused and a written statement of that interview is included in the record.

The record of the preliminary inquiry also contains a statement from Detective Corp. Om Prakash. This states that on 28th December 1994 he formally charged the accused and a written statement of that charge is included in the record.

In preparing for this trial the prosecution has discovered that Uday Chand has died and Om Prakash has emigrated to the United States.

Notice has therefore been given by the prosecution of an intention to call Constable Maha Ram. A statement of his evidence has been provided. He says that he was present, witnessed and countersigned for both the caution interview conducted by Det. Chand and the charging of the accused by Det. Corp. Prakash. His evidence is merely a replacement of the evidence of those two officers who are now unavailable.

I can see no reason why this evidence should not be admitted. The defence has always been aware that this evidence was to be called. The notice gives the name and address of the witness and the substance of the evidence he intends to give. The prosecution only became aware of the need for this additional evidence when preparing for trial. It then became acquainted with the evidence of Constable Maha Ram and determined to call him as a witness. Time is of no consequence because this evidence was already included in the record and is now merely being given by a different person. Reasonable notice has been given.

Accordingly, I rule that Maha Ram can be called by the prosecution to give evidence.

ADMISSIBILITY OF POST MORTEM REPORT

I have already given details of the unavailability of the pathologist Dr. Alera to give evidence at this trial. His post mortem report is part of the record of the Preliminary Investigation. The prosecution seeks to have that post mortem report produced at the trial.

Argument has been heard. Counsel for the State submitted that the report could be produced on common law grounds or as a public document. Counsel for the Accused submitted that the only way such a document could be admitted for the purposes of a criminal trial is pursuant to Section 191 of the Criminal Procedure Code and that is unavailable to the State in this case. Further, the post mortem report is not a public document because it is not in the prescribed form.

I have now received a memorandum from counsel for the State that he wishes to argue a further ground for admissibility of the report. This is under the Court’s common law jurisdiction preserved by Sections 111 and 112 of the Constitution of Fiji and the inherent jurisdiction of the Court.

I am aware of the current problem relating to the prosecution of homicide trials in this Court. Dr. Alera and other pathologists have left Fiji and it is becoming increasingly difficult to have them return to give evidence of post mortem examinations. This is seriously affecting the due administration of criminal justice in this Court.

The question of whether the post mortem report can be produced at the trial is a very important matter. This is the second occasion it has arisen recently in trials I have been hearing. A decision is needed from this Court. Such a decision is likely to be regarded as a precedent. For this reason and because of the importance of the issues it should only be given after a full and proper consideration of all relevant arguments.

I have heard argument on two points. The prosecution has now raised further points for argument. Before delivering a decision I would require a further issue to be considered. That is whether the post mortem report is admissible as a business record pursuant to Section 4 of the Evidence Act (CAP 41).

I wish to hear further submissions before giving a ruling on this issue. This can be done at an opportune time later in the trial.

EVIDENCE OF DHIRENDRA PRASAD

The statement of Dhirendra Prasad is included in the record of the Preliminary Investigation. He says that he visited the deceased in hospital on 26th December 1994. He spoke to the deceased who responded by nodding his head.

The defence objects to the admissibility of this evidence as hearsay. The State submits that it is admissible as a dying declaration.

I have not heard full argument on this matter. Counsel for the State submitted that this issue required a voir dire hearing with the calling of witnesses. Counsel for the Accused responded with the submission that the evidence is so inherently unsatisfactory and unreliable that it should be excluded without a voir dire. That issue has not been addressed by the prosecution.

Accordingly, a decision on this issue will be reserved until later in the trial. Further argument and if necessary a voir dire, can be heard prior to the witness giving evidence.

Justice D.B. Pain