State v Khan [2004] FJHC 72; HAR0002J.2004S (15 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

CRIMINAL REVIEW CASE NO: HAR0002 OF 2004

Between:

STATE
Applicant

And:

SAHADAT ATTAL KHAN
Respondent

Hearing: 15th March 2004
Judgment: 15th March 2004

Counsel: Mr. G. Allen for State
Mr. M. Raza for Respondent

JUDGMENT

This is an application for revision of a finding made in the course of a pending trial in the Suva Magistrates' Court. The Respondent is charged on one count of official corruption. The complainant is one Rajendra Narayan. In the course of the hearing, Rajendra Narayan was cross-examined by defence counsel. During an adjournment, the prosecutor spoke to him about the documents which he had been cross-examined about. When this was disclosed on the next hearing date, the learned Magistrate “ruled” that there was interference with the witness by the prosecutor. He further said –

“Finally, since I have found that there was interference of this witness (PW6) by the learned State counsel, I think it would be appropriate to warn her, as she is pretty well aware of the consequences of her actions. I feel that she should do the honourable thing open to her and that is to hand over the conduct of this matter to another officer to handle.”

The DPP seeks revision of these findings.

The revisionary jurisdiction of the High Court is provided for under section 323 of the Criminal Procedure Code. That section provides:

“The High Court may call for and examine the record of any criminal proceedings before any magistrates’ court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such magistrates’ court.”

Section 325 of the Code provides that the High Court may alter or reverse any order, and section 325(5) provides that where an appeal lies from any such finding or order, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

Section 308 of the Code (as amended by Act No. 37 of 1998) provides that appeals may be brought against any sentence or order whether or not the court has proceeded to conviction.

The ruling which is the subject of this application does not constitute an “order.” It is a finding against which there appears to be no right of appeal. It follows that the State has not fallen foul of section 325(5) of the Code. Although the State has the ability to move the High Court in this matter, this Court does not normally favour such interlocutory appeals because they fragment the criminal trial, they cause delay and they are capable of interfering with the discretion of the trial magistrate. Interlocutory appeals and revisions should only be entertained in circumstances where a ruling determines the outcome of the trial, or will have a direct bearing on the way the trial is conducted. It was for this reason that such an interlocutory appeal was entertained in this same case by Gates J in The State v. Khan and Singh HAM0034.03S. That appeal/application was in relation to the court’s power to deny the right of audience to counsel by reason of conflict of interest.

I consider that a ruling in this case is justified because the learned Magistrate’s finding that the witness has been “interfered with” will have a direct bearing on that witness’s credibility at the end of the trial, and also will determine the conduct of the prosecution by the prosecutor who is the subject of this revisionary action. Clearly, some guidance from this court will assist in the conduct of the trial. Further, it is not my intention to make any finding on the facts of the case which might interfere with the findings of fact to be made by the learned Magistrate.

The trial in this case commenced on the 15th of September 2003. There was some delay because the State objected to Mr. A.K. Singh appearing as defence counsel. The High Court ruled (State v. Khan & Singh (supra)) that he should not represent the accused, and Mr. Raza took over as defence counsel. On the 21st of February 2003, PW6, Rajendra Narayan was cross-examined. He is a prosecution witness. He was cross-examined about certain documents in relation to his business. The relevance of the document appears to be that the witness is alleged to have had some experience in registering motor vehicles because he is an experienced car dealer. He said under cross-examination that he had registered other vehicles prior to the case and that he “can bring the documents without the red stamp. It was approved over the counter.”

No court order was requested for the production of these documents. Counsel at the hearing of this application agreed that the witness had not been requested, or ordered to produce the documents. He was only asked if he was able to produce them. The hearing was later adjourned to the 28th of January 2004. The witness was cross-examined further. He was again asked about the documents without the “red stamp.” The record then reads:

“Ms Prasad: I informed witness he could if he was subpoenaed. He was only requested in court, not subpoenaed.

Mr. Raza: I wish this be noted. This witness was under x-examination, he is not a pros. witness, he is not to discuss the case, Pros included. The interference with witness is effected by Pros. For whatever purposes the advice, directly or indirectly, fall on from there from what I’ve noted.”

He went on to say that the Prosecutor could be charged with interfering with due process, because she had usurped the function of the court.

The learned Magistrate agreed, in his ruling on the 25th of February 2004. He found that the Prosecutor had agreed that she had interfered with the witness and that she was not entitled to meet with witnesses to “run her case” when those witnesses had taken the oath and were under cross-examination. He found that the Prosecutor had interfered with the witness in fact, and that she should, in honour, hand over the conduct of the prosecution to another officer.

There is no doubt at all, that there is a long-established rule of practice at the Bar, that counsel must not talk to witnesses once they have taken the oath. This rule is often found in legal codes of conduct. It is not found in the Fiji “Rules of Professional Conduct and Practice” (annexed to the Legal Practitioners’ Act 1998) but appears for instance in the Queensland Ethical Rules which provide inter alia:

“Counsel should not speak to a witness (other than an expert witness) whose cross-examination has begun but has not been completed.”

Boulton (Conduct and Etiquette at the Bar Butterworths (1971)) says (at p.12):

“Save with the consent of counsel on the other side or by leave of the tribunal, it is improper for counsel to communicate directly or indirectly with a witness, whether or not his client, once such witness has begun to give evidence, until his evidence is concluded.”

This rule derived originally from the Senate of the Four Inns of Court of London. It is the body responsible for the discipline of barristers in England and Wales and the rule prohibiting communication with a witness on oath appears to have emerged because of the principle that once a witness takes the oath he or she is the court’s witness and is the property of neither party to the proceedings.

There is another very good reason for the rule. In our adversarial system of justice, a legal practitioner can be seen as attempting to secure a particular result by telling a witness what to say in his or her evidence-in-chief or under cross-examination. The rule exists to protect counsel from any such allegation. No matter how awkward it may appear to be, lawyers must be prepared to tell a sworn witness that they cannot speak to him or her because he or she has taken the oath. Talking to a witness who is in the witness box, no matter how innocently, exposes counsel to criticism of impropriety and unlawfulness.

How is a court to deal with it when such an occasion arises? A judge or magistrate must first discover the nature of the conversation. If the conversation has no bearing on the issues on trial, then a reprimand conveyed to the erring lawyer is usually sufficient. If however, there is evidence of “coaching” then a reprimand followed by a careful direction at the end of the trial of the effect of such conduct on the weight given to the evidence of the witness is the appropriate course of action. Refusing counsel audience, or suggesting to counsel that the brief be taken over by another lawyer are inappropriate and unnecessary courses of action. Finally, a judge or magistrate can always consider, in a serious case, a referral to the Law Society or the Director of Public Prosecutions for a consideration of disciplinary action. Where the interference appears to be criminal, in that it tends to pervert the course of justice, a referral to the Commissioner of Police for investigations may be appropriate.

In this case, counsel for the prosecution told the witness that he had not been subpoenaed to bring the documents and need not bring them until he was ordered to do so. Counsel for the defence agreed that she spoke no more than the truth. There had been no order to produce the documents. The witness had only said that he was in a position to find and bring the documents. He was not obliged to bring them. It is apparent that there was no further conversation between the witness and the prosecutor. It is not suggested that the prosecutor discussed with him the nature of his evidence or the contents of the documents. Further, although counsel for the defence said that the prosecutor had “liaised” with the witness, this is not recorded on the court file. There is no suggestion of any conversation beyond that noted.

In the circumstances I fail to see how she interfered with the course of justice, and how her conversation with the witness, in any way reflected on the outcome of the trial.

It was certainly unwise and improper of the prosecutor to speak to the witness because it exposed her to the kind of criticism which she then received in court. However, I cannot see how her advice to him that he was not under a court order to produce documents, could constitute an interference. That finding of the learned Magistrate was certainly an error in law.

Further, the learned Magistrate’s suggestion that another State counsel handle the case was unnecessary. The conversation, which she readily owned up to in open court, in no way compromised the conduct of the prosecution. This was surely a case, where the Bench should have issued a reprimand to counsel for speaking to a witness on oath, followed by a warning to the witness not to discuss the case with anyone while he was in the witness box and on oath.

The finding that the prosecution should be handled by another prosecutor (a matter normally within the exclusive province of the Director of Public Prosecutions) was not appropriate nor necessary in the circumstances. Of course there may be circumstances which may lead the court to refuse the right of audience to counsel for reasons of conflict or otherwise. (Gates J in R v. Khan & Singh (supra), Black v. Taylor (1993) 3 NZLR 403.) Such circumstances do not arise here.

In the exercise of the revisionary jurisdiction of this court, I therefore reverse the learned Magistrate’s finding that there was an interference with the prosecution witness in this case. There was no interference in law. The trial should now proceed on that basis.

Nazhat Shameem
JUDGE

At Suva
15th March 2004