State v Tuiyanawai [2005] FJHC 148; HAC0022xx.2004S (21 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0022 of 2004S

STATE

v.

SAMISONI TUIYANAWAI;
SEMISI WAINIQOLO;
SOLOMONE BOINI; and
MOSESE YACO

Hearing: 21st June 2005
Ruling: 21st June 2005

Counsel: Mr. W. Kuruisaqila for State
All accused in person
3rd Accused absent

RULING

The State seeks to admit photocopies of all caution interviews. In an earlier trial within a trial I found the interviews of the 1st, 2nd and 3rd Accused to be admissible in substance. The 4th Accused did not object to admissibility but he does object now. The ruling in relation to his statements is subject to a trial within trial on the question of voluntariness which will be held later in this trial.

In order to admit photocopies of any documents, the prosecution must prove firstly that the original existed which would have been admissible in itself, that the copy is a true and faithful copy of the original, that the original is lost or destroyed, that a diligent search was conducted, that the original was kept safely before it was photocopied and a copy made from it (Reg. v. Vincent Lobendahn [1972] 17 FLR 1, State v. Kanito Matanigasau Cr. App. HAA 108 of 2002, Satya Prasad and Vishnu Deo v. Reg Crim. App. No. 56 of 1980).

The Accused persons objected to the admissibility of the photocopies but did not appear to dispute authenticity of the copies. Because each is unrepresented I proceeded with the trial within a trial to determine authenticity and admissibility.

The State called DC Viliame and Mr. Maciu Nacaucaulevu of the DPP’s Office. DC Viliame gave evidence that the original interviews were kept in a brown envelope in the exhibit room until they were given to Mr. John Rabuku of the DPP’s Office, to prepare the case for preliminary inquiry. DC Viliame helped Mr. Rabuku to make photocopies. He never saw the originals again.

Mr. Maciu Nacaucaulevu gave evidence that he conducted a search for the originals in all the offices at the DPP’s Office in Suva and Nausori, but was unable to find the originals. He said that at preliminary inquiries, originals were sometimes tendered in the Magistrates’ Courts, but he was unable to say if that was the case here.

On this evidence I am satisfied beyond reasonable doubt that the photocopies of all statements made by the accused persons are now lost, and that true and faithful copies are in the possession of the prosecution. I am satisfied that (other than those of the 4th Accused) the originals would have been admissible in themselves, and that the DPP’s Office has conducted a diligent search for the originals, without success.

The State may tender the photocopies.

Nazhat Shameem
JUDGE

At Suva
21st June 2005