State v Drodroveivali [2004] FJHC 516; HAC0004.2002 (3 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CR. CASE NO. HAC0004 OF 2002

BETWEEN:

STATE

-v-

ISIMELI DRODROVEIVALI

Mr. B. Solanki - for the State
Mr. R. Matebalavu - for the Accused

TRIAL – RULING ON ADMISSIBILITY

On the original information the accused was charged with 44 counts of larceny by servant contrary to section 274(a)(i) of the Penal Code. At trial those 44 counts were reduced to 8. The accused was arraigned and pleaded not guilty.
Mr. Solanki for the State opened and informed the court that he intended to proceed and prove these charges by reference to 8 sets of documents. These were bank cheques and associated vouchers said to have been used by the accused to steal money from his employer. The first witness was called and led in evidence to a point where he would have enabled production of the first in the series of 8 exhibits. Objection was taken. The defence asked that a point of law be decided on the admissibility of these documents. They were not the originals. They were not carbon copies. They were not photocopies of the original. It became common ground that they were a second copy of a copy of the original. The originals had been stolen. The certified copies of the originals had been lost. I accordingly proceeded to hear evidence on this preliminary issue as a matter of law in the absence of the assessors.
EVIDENCE
The first crown witness Mr. Birendra Singh formerly an officer of NBF Asset Management Bank, was working at the bank at the same time as the accused. The witness assisted the police with a fraud enquiry by gathering together various bank documents. In this regard he obtained a series of bank cheques, credit vouchers and debit vouchers relating to certain transactions undertaken by the accused.
Mr. Singh knew that these documents were given to Detective Constable Chand to photocopy.
The originals and the photocopies were brought back to Mr. Singh to certify. After completing that task Mr. Singh gave the documents back to Detective Chand to pass them on to his Sgt.
Mr. Singh was shown each of the documents and they were marked for intended production (exhibits 1 A&B through to exhibits 8 A&B).
In respect of each document the witness confirmed he had seen the documents in the bank and that his identification mark, a signature, was on each document under the words certified copy.
The witness confirmed in cross-examination that after the photocopies and certifications were made he did not see the documents again until much later. He tempered his original evidence by conceding that the documents resembled the original but he accepted he did not know that the documents shown to him were photocopies of photocopies taken in the bank. In addition the witness conceded that he could not confirm the resemblance of the documents for another reason. The A4 copies shown to him that he certified were on a perfect and unaltered piece of A4 paper. The purported exhibit in every case had two holes punched through it. Accordingly the physical appearance of the document was not the same as the document he saw when the photocopy of the original was taken and he put a certification stamp on it.
The next witness called by the Prosecution, Actg. Detective Sgt. Mukesh Chand was assigned to this particular investigation when he was a Detective Constable.
He was under the direct supervision of Sgt. Ravin and carried out any task designated to him by the Sgt. to assist him in the inquiry. He confirmed that Sgt. Ravin gave him a folio of documents at the bank containing original debit vouchers, bank cheques and credit vouchers. He was to make photocopies of the documents. He did this manually on a photocopier in the bank premises. Having copied the 35 sets he gave them back to the previous witness for certification. Certification was completed in his presence but there was no evidence from the witness that he participated in the process of comparison between the original and the photocopy.
After certification was completed he gave the bundle of documents to his Sgt. He was asked by the Sgt. to keep the originals in his locked bag and he did so. The certified true copies where kept somewhere else. He did not know where they were kept. He then gave evidence that the originals safely locked in his bag went missing sometime on the 10th of May 1999. He reported that matter and there was as he put a "continuous search" for the missing documents but they could not be found. As a result of this an internal investigation was commenced alleging the Sgt. was negligent in his care of these original documents.
The witness then said as a result of this investigation process the Sgt. asked the detective to photocopy a set of the originally certified photocopy documents. So once more the detective was given a bundle of documents and set to the task of photocopying on this occasion some 61 items. These were handed back to the Sgt. for safekeeping. Again there was no direct evidence of comparison.
Detective Chand then proceeded on peacekeeping duties in Kosovo and was away from Fiji between the 14th of October 2000 to the 14th of January 2002.
He did not know what happened to the photocopy documents during his absence. He did not see documents relating to the case until the 2nd of March 2004. He was then shown each of the documents marked for production. He identified each set as resembling those photocopied by him in the police station in 1999 except for the D-folio identification mark and punched holes in the A4 sheet. He did not how the punched holes got into the sheets.
The witness was then cross-examined. He confirmed he only ever made one copy and could not explain how the holes in the proposed exhibit were made. His emphasis on the photocopying happening on the 23rd of July 1999 (the originals) and the 11th of November 1999 (photocopies of the first certified copies) weakened. He was shown a statement he made refreshed his memory and confirmed the contents of the statement as true and correct. He could not explain why he then said the photocopying was done on the 7th of April 1999 at a time when there were no missing relevant original documents. He commented about notes in his police notebook but neither prosecution nor defence sort leave to have him refer to those.
ARGUMENT
Mr. Solanki for the State submitted:
1. There were originals of which the intended exhibits of 8 sets of 3 documents were part.
2. He concedes that Mr. Singh says he gave a bundle of documents to Detective Chand to photocopy but Detective Chand says he received the documents from his Sgt.
3. Mr. Singh certifies the copies as correct copies of the originals.
4. Mr. Singh gives the bundle back to Detective Chand.
5. Detective Chand gives the bundle to his Sgt.
6. The Sgt. gives the originals back to Detective Chand with a request that he lock them up in his brief case.
7. The certified copies were at that time kept in a file but no one can say where.
8. The originals were stolen.
9. A bundle of documents marked certified copy were given by Sgt. Ravin to the Detective to photocopy. That bundle was given back to Sgt. Ravin.
10. The first copied certified documents went missing.
11. The State were attempting to produce before the Court copies of copies. It did not know what generation of copy.
Quite properly Mr. Solanki conceded that the witnesses were silent on the issue of comparison or verification of the intended exhibits. The State has no evidence that Detective Chand compared the originals with the first copy or the first copy with the second copy. If indeed it is the second copy that is presently before the Court marked for intended production.
Again the State quite properly concedes that it can’t explain the holes in the A4 photocopy page. It has no evidence to confirm the chain of integrity of the evidence. It is unable to call Sgt. Ravin as he now lives in the United States of America. Accordingly Mr. Solanki concedes that the State also in the absence of that evidence has difficulties with the chain of integrity. However having made that concession he points to the evidence of Mr. Singh and his personal recollection of the documents. He was familiar with them and had little doubt that the document he sighted in Court was what he certified as he recognised his identification mark.
For the accused Mr. Matebalavu emphasises that there is no evidence of verification from Detective Chand. He points to the lacuna in the chain of evidence. He says that accordingly the State have no evidence that the proposed exhibits are copies of the documents Mr. Singh originally certified.
He points to the conflict in the State’s evidence about exactly when the copies were made. Was it before or after the originals were lost and if so what exactly was photocopied. He emphasised the witnesses ambivalence on these points. He further highlighted the difference in appearance of the documents those photocopied by the detective were made on to whole sheets of A4 paper. The proposed exhibits were altered in that they had holes punched on them. The witness could not explain why.
In reliance on the legal requirements for the production of secondary evidence, he queries if a sufficient search was done for the originals. In effect he points to what he says is the lack of evidence of the fact the originals were lost. He concedes this is not his strangest argument.
THE LAW
The general rule is that a private document must be proved by primary evidence. The rule has a long history (see Phipson (13th edition) paragraphs 36.05.) It is now seen as the last surviving aspect of the best evidence rule i.e. that a party must produce the best evidence which the nature of the case permits. However as technology has advanced the rule has been consistently challenged if not eroded by that advance. The divisional criminal court in England in Kajala v Noble (1982) 75 Cr. App. R.149 is a case in point. The defendant in that case was charged with using threatening behaviour during the course of a disturbance in Southall.
A group of youths threw missiles at the police. The defendant was identified as one of those participating in the missile throwing by witness who had recognised him on a BBC television news bulletin concerning the disturbance. At the trial before magistrates the prosecution relied on a cassette recording of the film. It was BBC policy at the time not to release the original film. The defendant appealed on the ground that since the original film existed the prosecution should not have been allowed to rely on a copy. The divisional court did not agree. Ackner L.J. giving the judgment of the court said:
"the old rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded, has gone by the board long ago. The only remaining instance of it is that, if an original movement is available in one’s hands, one must produce it; that one cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility".
I entirely agree and adopt this principle.
A similar difficulty arose in the case of R v Lobendahn Fiji Supreme Court 1972 Goudie J. 18th January. In this decision the law on the question was restated. The Learned Justice held:

"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 production 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.

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.

In the instant case the Court was not satisfied with the evidence as to the existence of an original document, or of a due and diligent search for the same, and Exhibit 2 would not be admitted in evidence.
The case focused however on the absence of evidence of loss or destruction of the original. I do however concur with the learned Justice’s findings where he re-states the common law principle. It is necessary to prove that the second copy is a copy in fact either by calling the person who made it or some person who had compared the copy and the original and demonstrated that the one faithfully reproduced the other.
The learned authors in Cross on Evidence, 7th New Zealand Edition, November 2001, page 752 put it is way:
"There is no reason why the copy of a copy should not be received in evidence provided the witness producing it, or some other witness, makes it clear that the copy produced is a true copy of the first copy, and that that copy was, in its turn, a true copy of the original. In R v Collins* it was necessary for the prosecution to prove that the accused knew that his bank account was inoperative. The prosecution called an assistant bank manager who produced a copy of the unsigned carbon copy of a letter sent by his colleague to the accused informing him that his account was closed. The accused had been called upon to produce the letter. As he had not done so, secondary evidence was admissible. But the Court of Criminal Appeal held that the letter had not been properly proved by the bank manager because he did not swear that the copy produced was a true copy of the carbon, or that the carbon was a true copy of the original apart from the signature. Had the bank manager testified to these matters, it seems that the Court would have considered the letter to have been properly proved by his evidence."
*R v Collins (1960) 44 Cr. App. R.170; [1960] Crim. L.R. 490.
DECISION AND FINDINGS
I accept the defence contention that there was no reliable evidence of comparison in the second degree. There was some evidence of verification from Mr. Singh. However that focused on his barely legible identification mark not other contents of the document. Further it was restricted to a historic comparison of recollection. He recollected certifying a bundle of documents. He assumed the 8 intended exhibits were part of that bundle. He conceded the intended exhibits were different. They resembled the original but he could not say they were in fact photocopies of the copy taken in the bank.
There was some evidence but in my view it did not go far enough. As in R v Collins (supra) the real evidence required for proof of the proposed exhibit was missing.
That Detective Chand made no comparison is not surprising. His Sgt. retrieved the documents to be copied and gave them in a bundle to the detective. Inside that bundle were the 8 subject documents for this trial. The detective gave evidence that he manually photocopied the originals but no evidence that he compared the photocopies and the originals.
He then gave the entire bundle of originals and copies to Mr. Singh for the purpose of certification. This happened across the desk from the detective but without his participation. I find that he did not actually compare what he photocopied with the originals. Why should he? That was Mr. Singh’s task.
After certification the documents were again bundled together and given to the Sgt. He did not have a secure place for them. He separated out the originals, put them in a bundle and asked the detective to keep them safe in his locked brief case. The Sgt. kept the certified copies. Where exactly, we don’t know.
There then follows a remarkable chain of events that sees first the original documents stolen from the detective’s locked briefcase and then Mr. Singh’s certified copies go missing.
Fortunately as a result of internal investigations Detective Chand is again tasked by his Sgt. to photocopy a bundle of certified copies. The detective again manually photocopied that bundle. I find again he was performing a routine task and not paying much attention to the individual documents in the large bundle he was required to photocopy.
He gave no evidence that at any time he compared the documents in that bundle with what he had first photocopied. He did not at any time compare or verify as a true copy any particular document he was given to duplicate in a bundle. He then gives the bundle back to his Sgt. and does not see any of its contents until a long time later.
The detective constable went overseas to perform peacekeeping duties in Kosovo. He does not hear of this matter again until early this year. His memory about the processes of photocopying was not refreshed until Monday of this week.
It was therefore little wonder that the detective’s evidence was tentative and uncertain under cross-examination. This all happened many years ago.
He could not assist with evidence of comparison. He could not explain punch holes in the exhibits marked for identification. He conceded the contradiction in his evidence about exactly when it was that the second copy was made by him. He could not adequately explain a confusion about dates of the photocopying; before or after the original documents went missing.
The State were unable to call any other witnesses to provide confirmation of the chain of security of these intended exhibits. The State did not call any evidence to demonstrate any basis of comparison between certified copy and copy. Mr. Solanki was unable to call any evidence to clarify the apparent contradiction in Detective Chand’s evidence. The State quite properly in my view made appropriate concessions about the strength of its case.
As tempting as it is to fill in the State’s case with inference that as these documents looked similar they must be the same. That would be wrong.
The evidential burden of proving these documents admissible lies with the state. There was no reliable evidence that the copies sought to be produced were a true copy of the certified copy or a true copy of the original apart from the signature of Mr. Singh.
There was no evidence to confirm the chain of custody of this bundle of documents. There was no evidence to confirm what was sought to be produced was in fact sourced from the original.
Had the state been able to produce evidence about these matters the Court’s decision may have been different.
For these reasons I grant the defence’s application and uphold the objection to the production of the documents variously marked for identification as Exhibit 1 A&B to 8 A&B. They cannot therefore be produced at this trial.
I am grateful to counsel for the professional and diligent way they discharged their duties.
[ Gerard Winter ]
Judge
At Suva
3rd March, 2004