State v Tirikula [2008] FJHC 45; HAC105.2006 (19 March 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
CRIMINAL JURISDICTION
AT SUVA

Criminal Case No: HAC 105 of 2006

BETWEEN:

THE STATE

AND

PENIASI TIRIKULA

Mr. A Rayawa for the State
Mr. F.W.R. Vosarogo [LAC] for the Accused
Date of Hearing: 14 March 2008
Date of Ruling: 19 March 2008.

RULING

1. This is my ruling in the pre-trial application by State Counsel for the admission of certain witness statements that were recorded by the police in the course of their investigations in this matter. The statements were purportedly given to the police by Sue Gong Joo Ha Ali [Sue] and her husband Michael Hamid Ali [Michael].
   
2. Sue and Michael were husband and wife. They were the victims of the robbery with violence the subject of this trial.
   

Background facts

3. Sue gave 3 witness statements to the police. The first statement dated 1 May 2006 was recorded by D/Sgt 2210 Jale D; second statement dated 2 May 2006 recorded by D/Sgt 2210 Jale D; third statement dated 3 May 2006 recorded by D/Sgt 2210 Jale D.
   
4. Michael gave one statement that was dated 26 April 2006 and was recorded by D/Cpl 2108 Tevita R. He was found dead on 27 April 2006.
   
5. All these statements were part of the disclosures tendered by the State when it file the information charging the accused with one count of robbery with violence and one count of manslaughter.
   
6. The matter was transferred to the High Court under section 223 of the Criminal Procedure Code Cap 21 [CPC] by the Magistrate Court on 27 October 2006. There was no committal hearing in the Magistrates Court as this has been abolished: section 224 CPC.
   
7. In the High Court the charges in the Information are as follows:
   

First count

Statement of Offence

Robbery with Violence: contrary to section 293(1) of the Penal Code cap 17

Particulars of Offence

PENIASI TIRIKULA on 24 April 2006, at Lami in the Central Division, robbed one Sue Gong Joo Ha of two cameras valued at $1,400.00; a wallet containing cash in the sum of $400.00; two mobile phones valued at $400.00; a DVD valued at $100.00; a radio valued at $10.00; a gold ring valued at $400.00 and 30 discs valued at $90.00; to the total value of $2,800.00 and at the time of such robbery did use personal violence on the said Sue Gong Joo Ha.

Second count

MANSLAUGHTER: Contrary to sections 198 and 201 of the Penal Code Cap. 17

Particulars of Offence

PENIASI TIRIKULA on 27 April 2006 at Lami in the Central division, unlawfully caused the death of Michael Hamid Ali s/o Nur Ali.

8. One of the difficulty the court faced with this application is that it was made at the pre-trial stage. This meant that some of the supporting circumstantial evidence that would have been adduced, if the application was made in the course of the trial, was not available to the court. It made the court’s evaluation and determination of the issues of law raised in the application more difficult.
   
9. The court requested the LAC to provide legal advice for and on behalf of the accused on the matters covered by the pre-trial application of the State. This was necessary given the difficult issues of law involved and the prejudicial effect it may have on the accused person if the witness statements in question were admitted as evidence in his trial.
   
10. The court is indeed grateful to Mr. Vosarogo [Director, Legal Aid commission] for agreeing to appear as counsel for the accused and also for his detail written submissions that has been filed in court.
    

State submission

11. The State submits that the witness statements given by Sue and Michael to the police and referred to in paragraph 3 above, are admissible as evidence. The basis of their submission are as follows:
    
    1. That the statements would be admissible under section 290 of the Criminal Procedure Code Cap 21 [CPC];
       
    2. under sections 2 and 4 of the Evidence Act as business records kept by an authority established under an act of parliament;
       
    3. That Michael’s statement is admissible either as a dying declaration or under the principle of res gestae
       

Submission on behalf of Accused

12. Mr. Vosarogo has made full written submission on behalf of the accused. In summary his arguments against the admissibility of the police witness statements given by Sue and Micheal are as follows:
    
    1. Section 290 CPC is now redundant given the new procedure introduced by the Criminal Procedure Amendment Act 2003, which abolished committal proceedings in the Magistrates’ Court before a trial in the High Court. The State cannot rely on it.
       
    2. Section 290 CPC only covers statements that have been subjected to committal proceeding and certified by the Magistrate. The statements in question here were not part of any depositions because there was none held;
       
    3. The statements in question may qualify as business records under the extended definition of business under section 2 but they do not relate to statements of facts that would be admissible if contained in a document and the maker is overseas, under section 4 of the Evidence Act Cap 85.
       
    4. Michael’s statement dated 26 April 2006 is not a dying declaration because at the time it was made the person who made it did know his death was imminent and that he wanted to give the statement that is material to the involvement of the accused;
       
    5. The requirements of res gestae has not been established in this case, therefore the statements are inadmissible.
       

Section 290 CPC and Admissibility of Police Witness Statements

13. The State in its written submission ‘concedes that section 290 relates to a repealed provision regarding preliminary inquiry.’ But it did not withdraw it from its submission.
    
14. The witness statements given by Sue and Michael in the course of the police investigations in this case have not been subjected to a committal proceeding in the Magistrates Court. This is so because the committal proceedings were abolished in Fiji in 2003 pursuant to section 224 CPC.
    
15. Section 290 CPC requires the following to be satisfied before the court may order the admission of witness statements as evidence in a trial:
    
    1. The statements to be admissible has to be part of the deposition taken before Magistrate during a committal proceedings;
    2. The witness is absent from Fiji; or ill to be unable to attend the trial or unable to attend for any other sufficient cause;
    3. The statements in question must be part of deposition that is certified by the committing Magistrate.
       
16. It is a fact that the statements given to the police by Sue and Michael which the State wish to adduce in evidence during the trial of the accused were not part of any deposition hearing in the Magistrates’ Court. They are mere police witness statements and as such would not satisfy the requirements of section 290 CPC. On that basis they would be inadmissible as evidence under that provision of the CPC.
    
17. I wish to observe that in my view, section 290 of CPC is now redundant with the abolition of committal proceedings in the Magistrates Court. I therefore conclude that Sue and Michael’s statements do not satisfy section 290 CPC and it cannot be admitted as evidence in the trial of the accused, under that provision.
    
18. The State in its written submission has submitted, that read with section 230 CPC and with a liberal approach to statutory interpretation the statements in question may be admissible.
    
19. I should make clear it that sections 230 and 290 CPC, cover two separate and distinct situations, where evidence may be sought to be admitted in a trial. Under Section 290 CPC where the requirements are satisfied, it would permit the court to admit witness statements that are part of depositions in the Magistrates Court to be admitted in a High Court trial on the same matter.
    
20. Under section 230 CPC, the procedure for taking witness statements from a witness who is dangerously ill or hurt and is unlikely to recover and where the evidence is material in a trial before the High Court. That statement may be taken before a Magistrate under oath. Statements taken under that procedure may later be admitted by the High Court as evidence in the trial proper once evidence is led that the other requirements of section 230 CPC was satisfied.
    
21. Had the police obtained Michael’s statement by following the requirements of section 230 CPC, it would have been admissible in the current trial. On the facts here, the witness statement made to the police by Michael were not made on oath before a Magistrate and it is not certified by the magistrate as to circumstances and the reasons why it was taken, which is required by section 230 CPC. I conclude that Michael’s statement cannot be admitted under section 230 CPC.
    

Statements Admissible under sections 2 and 4 Evidence Act Cap 85

22. The State has submitted that the statements were business records under the section 4 of the Evidence Act Cap 85. In making this submission the State has relied on the High Court decision in State v. Davendra Singh [1997] FJHC 137(HAC 0017 of 1996).
    
23. I have carefully reviewed Mr. Justice Pain’s decision in Davendra Singh and I agree with his analysis on what may be admissible evidence as business records. For a statement to be admissible it must be a record relating to a "business’ within section 2 of the Evidence Act. A Business is defined as:
    

‘ includes any public utility or undertaking carried on by any city or town council or by any other board or authority established under the provision of any act..."

24. I would hold that police department is an ‘authority’ established under the provision of an act, namely, the Police Act and the Constitution of Fiji. In reaching this conclusion, I adopt the same reasoning in Davendra Singh, and the case law cited therein.
    
25. The New Zealand Court of Appeal in R. v. Hovell [1986] 1 NZLR 500, considered an application for leave to appeal against a High Court ruling on a pre-trial application under section 344A of the Crimes Act. In the High Court Pritchard J ruled inadmissible, a statement which the prosecution proposed tendering at the trial under section 3 of the Evidence Amendment Act (2) 1980. The issues of whether the police statement was a business record was considered by Richardson JA in his judgment, which I find support from in this case.
    
26. This would mean that witness statements given to the police in the course of their criminal investigations and which later may be tendered as part of court disclosure statements in support of the laying of charges against an accused person would be business records of the police. This is so because they are records compiled in the course of normal police work and is the duty of the police officer to do so and comes within section 4(a) of the Evidence Act: Simpson v. Lever & Anor [1963] 1 QB 517
    
27. Section 4 of the Evidence Act provides that in any criminal proceedings where direct oral evidence of facts would be admissible, any statement contained in a document and tending to establish that fact, would be admissible. The next issue to determine is whether the statements in question here are, direct oral evidence of facts that would be admissible in the trial. The short answer to that is they would not be admissible. They are simply witness statements covering matters that may be relevant for purpose of giving sworn testimony in the trial. They are certainly not evidence of fact that would be admissible.
    
28. Unlike the record kept by the pathologist on what he factually found during his examination of the deceased during the post mortem which were admissible facts in Davendra Singh. It is to be noted that the court only allowed the factual observation of the pathologist, not his opinion on the likely cause of death.
    
29. In New Zealand case of Hovell (supra), overturned a High Court decision and decided that police witness statements made by some one who has since deceased is admissible in the trial of that case. That outcome is due, in my view, to the particular statutory wording of section 3 (1)(a) of the Evidence Amendment Act (No 2) 1980 in New Zealand. The Evidence Amendment Act 2002 in Fiji has not extended the criteria for admitting documentary hearsay evidence in Fiji in criminal trials, like that in New Zealand. The law in Fiji on this area of the law of evidence is still very much common law as developed by the courts.
    
30. I therefore conclude that the statements made by Sue and Michael to the police in the course of their investigation are inadmissible under section 4 of the Evidence Act.
    

Dying Declaration

31. The State submits that Michael’s statement to the police is admissible as a dying declaration. What is a dying declaration? The Privy Council in Nembhard v. R. [1981]1WLR 1515 stated the rule governing dying declaration as: that a statement of a deceased is admissible as evidence of the cause of his death at a trial of his murder or manslaughter if the deceased was under a settled hopeless expectation of death when he made the statement.
    
32. In Mills & Others v. R. [1995] 3 ALL ER 865 the Privy Council reviewed Nembhard and adopted the above statement.
    
33. On the facts of this case there are two matters that standout: the first is whether the statement made by Michael dated 26 April 2006, qualify as dying declarations? The second is: was that statement made by him with a imminent apprehension of his death or settled hopeless expectation of his death?
    
34. In Mills & Others the Privy Council was concerned not with a written witness statements given to the Police by a person since deceased, in the course of the police investigation, rather with a short verbal statement, namely, "Jules and him bouy dem chop me up" made by the deceased to a witness, as he laid down after being attacked with a machete. The declarant died a few minutes thereafter. The witness also saw the deceased being attacked by the accused and was able to identify them.
    
35. In the present case, the statements in question were made to police officers as part of a criminal investigation following robbery. At the time they were made there was no suggestion that the maker was in a settled hopeless expectation of death. The statement does not positively identify who the assailants who attacked Michael and his wife Sue were.
    
36. In Mitchell (1892) 17 Cox CC 503, Cave J rejected a statement which related the substance of questions put to a dying woman and answers given by her because they were the exact words of the woman. The form of the statement is an important consideration in determining whether a statement indeed a dying declaration or not. In the context of form of the statement that Michael gave to the police it certainly was not a dying declaration.
    
37. I find that the form of the statement and the lack of imminent apprehension of death, disqualify this statement from being a dying declaration. The lack of proximity between the time the statement was made and when death occurred was too much. The statement is therefore not admissible on this ground.
    

Res Gestae

38. The State has sought to rely on the principle of res gestae in its submission that the police witness statements given by Sue and Michael be admissible in the trial. The State has not particularized the basis of this claim nor is there any indication whether their claim is with reference to particular parts of the police witness statements given by Sue and Michael.
    
39. For any statement to be admissible under the res gestae principle, the Privy Council in Ratten v. R [1971] UKPC 23; [1972] AC 378, established the proper test is whether the statement was so clearly made in circumstances of spontaneity and involvement in the event that the possibility of concoction or fabrication by the maker of the statement can be disregarded. Conversely, if the statement was made by way of narrative of a detached prior event so that the speaker was disengaged from it as to be able to construct or adapt his account, it should be excluded.
    
40. In Tapper v R [1952] AC 480 the House of Lords stated the res gestae principle thus:
    

‘The rule against admission of hearsay evidence is fundamental. It is the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross examination, and the light which his demeanour would throw on his testimony is lost. Nevertheless, the rule admits of certain carefully safeguarded and limited exceptions, one of which is that words may be proved when they form part of the res gestae......It appears to rest ultimately on two propositions, tat human utterance is both a fact and a means of communication, and that human action cannot be understood without the correlative words, and the dissociation of the words from the action would impede the discovery of truth... Their Lordships will not attempt to arrive at a general formula....This at least, may be said, that it is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so closely associated with it, in time, place and circumstances, that they are part of the thing being done, and so an item or part of real evidence and not merely a reported statement’ per Lord Normand at page 486-487

41. The State has not sought to separate the statements it wished to admit under this principle. They simply want the court to admit the witness statements of both Sue and Michael.
    
42. The statements sought to be admitted by the State, were made to the Police by Michael as part of the police investigation. They were not statements made spontaneously and with involvement in the event. In the case of Michael’s statement it was made two days after the event. There was ample opportunity for the maker to have reflected on the events before he made his statement to the police. The statement was not a spontaneous statement, rather it was recorded in response to police investigation some time after the events with a trial in their mind. The chances that the statements may have been recorded with that objective in mind makes it susceptible to manipulation.
    
43. In the case of Sue’s statements there is no evidence before the court that would satisfy it that she would not be able to return from Korea for the court case. Lord Ackner in Andrews[1981] AC 281 observed that this doctrine be not used as a substitute if the witness is available.
    
44. There is the issue of contemporaneity in the making of the statement is critical i.e. the statement must be contemporaneous with the event. In this instance, Sue’s statement were made seven days after the event and Michael two days after the event. I refer to paragraph F16.46 of Blackstones Criminal Practice 2003 page 2263, where a lapse of two days was considered too great in the case: The Henry Coxon [1878] UKLawRpPro 30; (1898) 3 PD 156.
    
45. Applying the rule in Ratten and in Tapper to the facts of this case, I would conclude that the police witness statements given by Michael is inadmissible under the res gestae principle.
    
46. In the light of the above considerations, I rule that the pre-trial application by the State for the witness statements given to the police by Sue and Michael be admissible evidence in the trial in this case is refused. Those statements referred to in paragraph 3 of this ruling will be excluded from the trial. It is so ordered.
    
47. I wish to make the observation that the concept of reasonable necessity as a criterion for admitting hearsay evidence in criminal trials is imprecise and problematic in overseas common law jurisdiction. In Fiji it is a matter for parliament not the courts to provide clear and precise guidelines in the form of appropriate legislation.
    

Isikeli Mataitoga
JUDGE

At Suva,
19 March 2008.