State v Tikoisuva [2004] FJHC 343; HAC0024.2003 (25 November 2004)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION

HAC0024.2003

STATE

V

MELI TIKOISUVA & PAULIASI IMANUELI

RULING NO. 1 IN THE TRIAL

At a stage in the proceedings where Mr. Koroi was called by the State it became clear during firstly examination in chief that Mr. Koroi was not coming up to brief. Rather than challenge him on that matter State’s counsel quite properly in my view let the matter rest and Koroi was passed over for cross-examination by Mr. O’Driscoll. Mr. O’Driscoll had only 3 questions for the witness. That last of which related to whether or not Mr. Koroi who was part of the drinking group was asked whether if during the course of the stand off between these accused and the deceased Mr. Koroi saw any punches thrown. His reply was to the effect and I quote “at no time did I see the Indian man get punched only holding off his collar”.

That statement is in sharp contra distinction to a police statement that the witness made on the 24th of August 2003 a day after these events occurred. In that statement at page 3 the witness said:

“After that I saw Pauliasi Matai holding the Indian man’s collar of his shirt with his left hand and punch his chin with his right fist three times. I saw Tikoisuva also throwing punches on to the Indian man.”

The witness was passed from cross-examination to re-examination and counsel from the State embarked on a cause designed to contradict his own witness with his in consistent statement made to the police. I find he was entitled to generally take that course as the issue had been raised in cross-examination by his learned friend Mr. O’Driscoll. However, I paused him the midst of that attempt and asked the assessors to retire so that the issue could be considered.

There are two relevant decisions and one matter of principle that have resolved the issue in my mind. The relevant decision The Queen v Moore [1994] Criminal Law Reports 841 where the Criminal Court of Appeal in England said that in many cases where witnesses have failed to deliver some evidence it is undesirable for the court to proceed immediately or treat the witness as hostile. A better approach is to invite the witness to refresh his memory from the proof. Then, if the witness does not allow his memory to be refreshed or does not give an explanation as to why his oral evidence is different from his proof the court then can consider whether or not to treat the witness as hostile.

Moore is a case involving applications made during evidence in chief. However, I am prepared to accept that the procedure is available during re-examination and I do that based on an extension of the principle used in cases involving allegations of recent fabrication.

In cross-examination where an allegation of recent fabrication is made the witnesses previous consistent statement will be admissible in re-examination to rebut the allegation that the witnesses only recently made his evidence up. I reason that if a previous consistent statement can be admissible in re-examination then, provided the correct procedure is followed, there appears to be no reason why a previous in consistent statement cannot be raised in re-examination.

Accordingly what I propose is that outside of the hearing of the assessors we now proceed to what is effectively a hostility hearing I will decide that issue. If I rule that the witness is only unfavourable not hostile there is nothing much the State can do. However, if I rule that the witness is hostile the State can do a little more by undermining the witness’s credibility in two essential ways. First, State’s Counsel will have leave to ask leading questions in cross examining the witness. Secondly, based generally on the procedures detailed in the old UK Criminal Procedure Act 1865 I will permit the State to prove the earlier inconsistent statement and the State will then be permitted to call an additional witness to introduce that previous inconsistent statement as evidence in these proceedings. That is what I propose to do. However, I need to go further and say that where a witness admits making a statement but continues to give evidence that is inconsistent with that statement I must direct the assessors to try the case on the witness’s oral testimony and tell them that they cannot rely on the witnesses earlier statement as fact. This point was made in The Queen and Nelson [1992] Criminal Law Report 653 and I intend following the direction to the jury used there that the testimony at trial is the only evidence in which the jury may act. Previous witness statements help only in assessing the reliability of the oral evidence in court and that is all.

Gerard Winter
JUDGE

25th November, 2004