State v Singh [2005] FJHC 723; HAC004.2004S (29 March 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC004 OF 2004S

THE STATE

V

ABHAY KUMAR SINGH

Gates J.

Mr M. Raza for the Accused
Mr D. Goundar with Mr A. Ravindra Singh for the State

22, 29 March 2005

PRE-TRIAL RULING

Accused’s motion for permanent stay of prosecution; grounds, alterations alleged to police record of interview; non-compliance with court’s orders; failure to resolve transcripts of tape recordings; late amendment of information as to dates of alleged offences; disadvantage to Accused thereby in preparation of defence and in ascertaining alibi witnesses; failure by counsel to use pre-trial conferences to narrow down issues for trial; allegation of bias of prosecutor.

[1] The Accused seeks a permanent stay on the prosecution of charges against him. He does so on the grounds that the prosecution has delayed giving him accurate disclosure of the dates on which he is said to have committed the offences. Such delay has handicapped him in preparing his defence and more seriously disadvantaged him in ascertaining his alibi witnesses and made it more difficult to remember events 20 months back.

[2] He complains of non-disclosure of the digital audio recording of conversations he is said to have had with the complainant. Two tapes, and Hindustani and English transcripts were disclosed but there are unresolved conflicts in the material. He complains also of failures by the State to comply with court orders made at pre-trial conferences, of alterations to a police record of interview, and of bias on the part of a prosecutor. All of these matters amount to abuse of process he says justifying the court in ordering a permanent stay of the prosecution.

[3] The Accused through his solicitors filed a motion on 23 February 2005. The motion set out the order required, the permanent stay, but it omitted to state the individual grounds for seeking such an order. The grounds were to be gleaned from the evidence contained in the affidavits of the Accused filed in support and from counsel’s submissions, the nub of which I have outlined above.

[4] The Accused stands charged on an information with 3 counts of attempting to pervert the course of justice contrary to section 131(d) of the Penal Code, Cap 17. the dates of the offences now alleged are count 1 "on or about the 11 day of June 2003" [previous information alleged "on or about the first week of June 2003"], count 2 "on or about the 15th day of July 2003" [previous information alleged "on or about the third week of July 2003"], and count 3 "on or about the 23rd day of July 2003" [previously, "on the 23 day of July 2003"].

[5] The Accused says he was interviewed by the police in relation to these matters. He told them he would give his alibi later after checking his diary. He was referred to Mr Ridgway of the Director of Public Prosecutions office. Eventually after making telephone contact with Mr Ridgway and being asked to write in, the Accused wrote to the Director with the details.

[6] Apart from stating in the letter "the writer was in his office most of that week" with a named client, the Accused provides nothing more specific about the 23 July 2003 date [count 3]. For the offence charged in count 3, the date has never changed, apart from now alleging "on or about". Why there is need for less precision in this count is yet to be seen.

[7] The Accused provided details for the 17th and 18th July 2003 the dates about which he was questioned (Qu 44 in his police interview). But in the amended information filed on 8 March 2005, the date given for count 2 was "on or about 15 July 2003". The Accused therefore had no opportunity to respond to that allegation back in July 2003 since such an allegation for 15 July had yet to be made.

[8] Similarly the amended information settled on a new date, 11 June 2003, for count 1. The Accused provided details for the first and third weeks of June but not specifically for 11 June. Only from 8 March 2005 has he known of the specific date against which he could check his diary for his whereabouts on that day.

Alterations to police record of interview

[9] Mr Raza submits that on the copy of the caution interview statement supplied to the Accused not all of the pages are signed by him, and some dates in the text are altered.

[10] Originally the pre-trial conference was fixed for 5 August 2004. This was re-fixed for 30 August 2004. The court record does not record any mention or PTC for 17 July 2004 as the Accused states in his first affidavit [sworn on 15 February 2005]. Nor is there any record of orders made by the court on 17 August 2004. However on that date the record notes that the court asked whether more precision could be brought to counts 1 and 2 on the information in relation to the dates of the offences. Mr Kurisaqila said he "would look at that."

[11] The court made the following comments.

(i) There was a need for counsel to decide what were the issues for the trial within trial.

(ii) The transcripts of the tapes were to be checked again for errors.

(iii) Also any errors in the typed copy of the caution interview were to be sorted out, so that both counsel accepted the accuracy of the document.

[12] It is likely after the allegations made in the second affidavit of the Accused [sworn on 17 March (mistyped "February") 2005] that the caution interview will be challenged in the trial. These relate to alleged alterations to the document, dates changed, page substituted, and the like.

[13] On 1 December 2004 the court reminded counsel there was a need for the PTC matters to be attended to, one of which was the suggested discrepancies in the caution interview.

[14] If these matters, pointed out by the defence, were obvious errors without sinister significance, the PTC was the occasion for counsel from both sides to sort them out and thereby to remove such errors from the list of disputed issues for trial. That process was not done. This is to be regretted since ample opportunity, both in terms of time and the number of mentions at court, was allowed by the court for it.

[15] I bear in mind the observation in a civil case Vijay Kumar v Narayan and Narayan (unreported) High Court Suva Civil Action No. HBC197.93S, 21 May 2004 at p.7 when Winter J said:

" In addition I accept the argument that the applicant defendants failure to comply with court directions and discovery is a factor to be considered."

The judge was considering an application for dismissal for want of prosecution.

[16] Lawton LJ in Reg v Hennessey (Timothy) (1978) 68 Cr. App.R 419 at p.426 said the courts must:

"keep in mind that those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence."

[17] If the matters remain disputed, then the challenge to the interview document will remain a trial issue. To arrive at decisions by default is not the way to prepare a case for trial. Nonetheless on its own I do not find the default sufficient for the court to order a permanent stay.

Tape and transcript

[18] Mr Raza says he has not had disclosed the digital recording. He says there is an unexplained difficulty with the copy tapes (the tapes having been disclosed at the Magistrates Court) and the transcripts.

[19] Mr Kurisaqila in his second affidavit [sworn on 21 March 2005] deposes that audio tapes, transcribed conversation in Hindustani between Abhay Singh and Rajendra Narayan, and English translation (of the same), were served on the Accused on 15 August 2003, for which he signed a disclosure certificate of receipt.

[20] The allegation in this regard was not included in the motion or the first affidavit of the Accused. This issue was brought out only in the second affidavit. I allowed the State therefore to file an affidavit in answer to the new allegations.

[21] The Accused complains:

"(e) That State has not disclosed the Tape or CD to enable us to prepare a full and proper defence especially when the Learned State Counsel was aware that I will be represented by an overseas Counsel.

(f) That I have perused the transcript of the tape and wish to draw your Lordship’s attention to page 9 of the Tape 1 Transcript where it starts Abhay: 40 Or 35.........." It goes up to page 15. When we look at page one to seven of Tape 2 is same as that on tape one. This confirms that the recording of the transcript and the tape is not clear and correct.

(g) I have also listen to tape one on side two that had recording which does not form part of the transcript.

(h) That side one of tape does not contain what is stated on transcript.

(i) That we do not have enough time to prepare the defence as far as tape or Count three is concerned.

(j) I verily believe and request the Honourable Court to stay Count three on the basis of non compliance of Court Order or on the basis of non disclosure."

[22] Amongst the disclosures of 1 August 2003 was the witness statement of Mr Peter Ridgway, the Deputy Director of Public Prosecutions. The witness explained the use of a digital voice recording device which records sounds in its electronic memory. After the recording of the disputed conversation the complainant Rajendra Narayan brought back the device, and Mr Ridgway downloaded it onto a computer. Eventually the recording was copied onto CD Rom disks and audio tapes.

[23] Two of the tapes were served on the Accused with the disclosures on 1 August 2003 with Hindi and English transcripts. Should the Accused or his counsel have wished to hear the alleged conversation which had been captured on the digital device, no doubt the prosecution would have allowed inspection of this form of exhibit as with any other exhibit in the custody of the prosecution. There is no evidence before me that an application had been made to the Director’s office and that it had been met with refusal.

[24] At this stage there is no evidence before me either that a digital capture of a conversation would be any clearer or of any superior quality than that subsequently downloaded from the digital device onto an audio tape.

[25] The defence argue that this conversation has nothing to do with this case because the Accused is not one of the persons speaking on either of the two tapes. My own recommendations at the PTC on 30 August 2004 were for counsel to work towards an agreed transcript and for it to be as accurate as possible. It appears there has been no co-operation in that regard. This does not reflect well on counsel. The two Counsel for the State on this application were not counsel in the case at the relevant time.

[26] The State does not inform me of any steps it had taken in 2004 to work on the transcript with defence counsel. It is only in March this year that two letters issued from the Director’s office to the Accused’s counsel seeking an appointment to go over the transcript. With the trial fixed for 30 March 2005 those necessary preparatory steps were taken very late in the day for the State to be ready for trial. On 10 March 2005 Mr Raza wrote back seeking a copy of the audio recording and a transcript (language not specified). Of course, his client had already received copies of these items as early as August 2003.

[27] I am not informed that anything has come of these late efforts. The removal or explanation of any irrelevant material on the tapes or of any muddle or imprecision in the transcripts, Hindustani or English, should have been attempted long ago. This was an important part of the case. The court does not want to have its time wasted at trial arguing over matters that could have been narrowed down or eliminated altogether pre-trial without the court’s intervention.

[28] I find there has been no failure of disclosure here. The Accused has had the material to be relied on and is not prejudiced in making his defence. It was always open for the defence to listen to the original digital recording in the possession of the prosecution. It was not requested. Neither side have co-operated to arrive at undisputed transcripts. But it is what is to be heard on the audio tape that constitutes the evidence for disclosure. That evidence has been disclosed. Accordingly this ground is not made out.

Bias by prosecutor

[29] Mr Raza informed me during his oral submissions that there had been and still existed an acrimonious relationship between the Accused and the DPP’s office. He submitted it infused this case. However Mr Raza did not deal further with the criticism made by the Accused in his affidavits of the conduct of Mr Ridgway, the Deputy Director.

[30] The Accused referred to the "impartiality" of the DPP’s office in his case. I believe "partiality" was what was meant. The main witness Rajendra Narayan has apparently been charged in another matter with attempting to pervert the course of justice. The Accused suggests that Mr Narayan’s case has been deliberately delayed "to keep him clean" for use in the Accused’s trial.

[31] Some of the supporting evidence for this deduction was in the form "I was informed by Police Nausori..." where the person who gave the information was not named. This is unacceptable and such evidence inadmissible.

[32] The Accused in his second affidavit seeks a stay of his case until "the investigation (into) Mr Ridgway’s conduct is completed, or until Mr Narayan’s case is finalised."

[33] The Accused says he has pursued other avenues by making a complaint to the Minister for Justice who asked his Chief Executive Officer to attend to it as a complaint against a public officer.

[34] In Mr Kurisaqila’s first affidavit he refers to and exhibits Mr Ridgway’s file note of 25 July 2003 recording the Accused’s telephone call to him. He also exhibits Mr Ridgway’s memorandum to the Divisional Prosecuting Officer Eastern at Nausori. In regard to the complainant Rajendra Narayan facing charges of attempting to pervert the course of justice, Mr Ridgway stated:

"...I thought I made it absolutely clear that neither I nor this office wanted to influence in any fashion the conduct of the prosecution against this man. I made it plain that it was a matter for Nausori Police to pursue if they felt it appropriate to do so. My expectation was that your prosecutor would get on with the job or withdraw the prosecution depending on the view you formed about the authenticity of the entry in the Invoice Book that was inspected."

[35] Mr Ridgway went on to refer to the potential clash of the DPP’s office in view of the A.K. Singh case. He concluded:

"The decision to prosecute or not prosecute this man is a matter for Police and this office does not wish to limit or influence that decision in any way."

[36] The issue no doubt is the credit of the complainant. That and any relevant questioning on the prosecution’s role in the matter are trial issues. I do not find any cause for ordering a permanent stay on this ground.

Change of dates and alibi

[37] Save for the imprecision of "on or about" count 3 has always alleged the offence to have been committed on 23 July 2003. This is also the date of the digital recording of the conversation disputed by the Accused. This was the date alleged from the outset and maintained in the complainant’s statements of 23 July 2003, 29 July 2003, and 26 August 2003.

[38] There remains for consideration the effect of the late amendment of the dates on which it is said the offences were committed for counts 1 and 2. The complainant’s second statement on 29 July 2003 in which he clarifies the dates for these two allegations was delivered to the defence on 1 September 2003. Mr Raza counters and says with some force that depositions and statements are not the same as specific charges.

[39] Mr Goundar says the service of the amended information on 8 March 2005 meant the Accused had 22 days in which to prepare his defence for trial.

[40] In effect, the Accused says he will not be able to have a fair trial, a constitutional requirement of the criminal process [section 29(1) Constitution]. It is the court’s duty to ensure a fair trial, and it has a general and inherent power to protect its process from abuse: Connelly v DPP [1964] AC 1254.

[41] It is for the Accused to establish on a balance of probabilities that non-disclosure has prejudiced his defence, in that it has had an adverse effect on his ability to make full answer and defence: O’Connor v The Queen [1995] 130 DLR (4th) 235.

[42] In Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 at p.56 Deane J said:

"The central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law ..."

[43] "To stay a prosecution is an extreme step which is only to be taken in the clearest of cases" per Randerson J in AG v District Court at Hamilton [2004] 3 NZLR 777. In Moevao v Department of Labour [1980] 1 NZLR 464 cited in the judgment just quoted, Richardson J at p.481 referred to aspects of the public interest which bear on the issue of abuse of process.

"The first is the public interest in the due administration of justice and ensuring that the Court’s processes are used fairly both by the state and its citizens. The second is the maintenance of public confidence in the administration of justice. Plainly, public confidence will be diminished if the processes of the Court are used unfairly."

[44] In District Court at Hamilton, Randerson J tabulated relevant considerations that the court would bear in mind when applying a discretion, and a judgment not bound by inflexible rules (at para 57). They were:

"(a) Whether the failure to disclose is due to [*39] inadvertence, inefficiency or to deliberate conduct;

(b) Whether the police or prosecuting agency has acted in good faith;

(c) Whether the failure to disclose is relevant in the sense that the non-disclosure of the material could damage the prosecution case or advance that of the defence;

(d) The extent of any prejudice to the accused in the conduct of his or her defence as a result of the non-disclosure;

(e) Whether the accused can nevertheless receive a fair trial without undue delay; and

(f) Whether remedies short of stay or dismissal could achieve a fair trial (such as an adjournment, the exclusion of evidence, the right to call rebuttal evidence, or a limited stay until relevant material is produced)."

[45] The failure to provide firm dates for counts 1 and 2 I conclude was not deliberate. Such conduct, if deliberate, would have undermined the efficacy of the prosecution. The provision of a clear and timely charge against an Accused is one of the fundamentals of a fair trial. That is not to say amendments do not take place prior to trial or even in the course of a trial.

[46] At this stage without arriving at any settled conclusion, for that must await the trial, I have yet to be convinced the prosecution have acted mala fides.

[47] The failure appears to have been due to laxness in engaging trial counsel from overseas. In addition too many counsel were involved locally, leading to the malaise of what is everybody’s job is nobody’s job. I attribute the failure to inadvertence and inefficiency.

[48] I also find that the late disclosures could only work against the prosecution case during the trial. An explanation either in evidence or in closing address of the difficulty in making recollection of events 20 months earlier could only work in the Accused’s favour.

[49] In his affidavit the Accused remarks adversely that any prudent prosecutor would have checked with his witness before arriving at any of the dates in the information. This is very true. The Accused of course is a practicing lawyer with over 10 years experience. If he followed his own advice he also would have checked the second statement of the complainant and realized those were the dates, checked and corrected then, that he would have to meet and defeat at trial. He knew in July 2003 the dates that the complainant was alleging.

[50] In his affidavits he never mentions any particular alibi witness who informed him of any difficulties of recollection.

[51] Whilst not making light of the non-attendance to court directives at the PTC stage, slow preparation, late amendment to the dates of the first two counts, and the non-co-operation between counsel, I do not conclude the Accused has suffered prejudice to the extent that compels a permanent stay on the trial. I therefore decline the motion.

A.H.C.T. GATES
JUDGE

Solicitors for the Accused: Messrs M. Raza & Associates, Suva
Solicitors for the State : Office of the Director of Public Prosecutions, Suva