State v Ram [2010] FJHC 451; HAC124.2008S (1 September 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 124 OF 2008S

STATE

V

1. ANESH RAM
2. KESHWA NAND
3. VIKASH CHAND
4. SAT DEWAN NAIR
5. ILAITIA WAQA
6. BINESH KUMAR
7. ANIL SINGH

Counsels: Ms. S. Vaniqi for Accuseds No. 1 and 2;
Accused No. 3 in Person;
Ms. M. Savou for Accuseds No. 4 and 5;
Mr. K. Shah for Accused No. 6;
Mr. R. Chaudhary for Accused No. 7

Hearings: 24th August 2010
Ruling: 1st September 2010

RULING

1. During the pre-trial conference on 24th August 2010, three contentious issues arose, which required the court's ruling. The issues were:

(i) The prosecutor's right to amend the information;

(ii) Leave to adduce alibi evidence at the trial; and

(iii) "Blotting out" prejudicial matters in a co-accused's caution interview statements.

2. The court sought the views of the prosecution and defence counsels on the matter, before it delivered its oral ruling on 27th August 2010. The court said it would provide a written ruling later, for the benefit of the parties. This is the court's ruling on the matter, which is basically a written summary of the oral ruling, delivered on 27th August 2010.

(i) The prosecution's right to amend the information

3. Section 214(2) and (9) of the Criminal Procedure Decree 2009 reads as follows:

"...(2) Where, before a trial upon information (or at any stage of such trial), it appears to the court that the information is defective, the court shall make such order for the amendment of the information as the court thinks necessary to meet the circumstances of the case, unless the required amendments cannot be made without injustice, having regard to the merits of the case..."

"...(9) The Court may, upon application by the prosecution, grant leave to amend an information, whether by way of substitution or addition of charges or otherwise..."

4. On 24th August 2010, the prosecution applied to amend the information by adding count No. 2, that is, "rape" against all accuseds, contrary to section 149 and 150 of the Penal Code, Chapter 17. The court sought defence counsels' and accused No. 3's views on the matter. Ms. S. Vaniqi, on behalf of Accused No. 1 and 2 did not object. Likewise, accused No. 3 did not object. Ms. M. Savou, on behalf of Accused No. 4 and 5 did not object. Mr. Shah, on behalf of Accused No. 6 also did not object. Mr. R. Chaudhary, on behalf of Accused No. 7 initially objected to the amendment, but later left it to the court.

5. Traditionally, a prosecutor was always entitled to amend charges at any stages of the proceeding, before it closed its case. However, in exercising its discretion to grant leave to the prosecutor to amend the charge, the court must always consider the overall interest of justice. In this case, most of the defence counsels and accused No. 3 did not object to the amendment. In any event, the alleged facts on which the alleged rape charge was based on, was already available to the defence, as part of the disclosure requirements. So, in a sense, the defence were not taken by surprise, by the prosecution's application to add another count of "rape", on 24th August 2010. I therefore grant leave to the prosecution to amend the information, by adding a count of "rape" against all accused, and I order so accordingly.

(ii) Leave to adduce alibi evidence at the trial

6. Section 125(1) and (2) of the Criminal Procedure Decree 2009 reads as follows:

"...125.—(1) On a trial before any court the accused person shall not, without the leave of the court, adduce evidence in support of an alibi unless the accused person has given notice in accordance with this section.

(2) A notice under this section shall be given—

(a) within 21 days of an order being made for transfer of the matter to the High Court (if such an order is made); or

(b) in writing to the prosecution, complainant and the court at least 21 days before the date set for the trial of the matter, in any other case..."

7. Accused No. 1, 2, 3, 4, 5 and 6 have not complied with the alibi notice requirement, required by section 125(2)(a) or (b) of the Criminal Procedure Decree 2009. The trial proper is a few days away, and as a result, they have verbally applied to court for leave to adduce evidence in support of an alibi, during the trial. The power to grant leave is a judicial discretion which must be exercised judiciously. The overall interest of justice must be served when a judicial discretion is exercised. In this case, if leave is not granted, the accuseds will not be able to call alibi evidence. The prosecution strongly objected to leave been granted, because the alibi notices as required, were not given.

8. I have carefully considered the defence and prosecution's position on the matter. As a matter of practice, the defence should strictly comply with the alibi notice required. The case was transferred to the High Court on 17th July 2008, and there was ample time for the defence to comply with the alibi notice requirement. At the same time, the prosecution was well aware of the defence alibi evidence, because the same were contained in the accuseds' caution interview statements, taken by the police shortly after the alleged murder. As a result, I will grant leave to accused No. 1, 2, 3, 4, 5 and 6 to adduce evidence in support an alibi, so long as the same were the ones mentioned in their caution interview statements. They are not allowed to adduce evidence in support of an alibi outside those mentioned in the caution interview statement.

(iii) "Blotting Out" prejudicial matters in a co-accused's caution interview statements

9. The above matter should have been resolved at the pre-trial conference stage, long before the trial proper. This case was before the High Court on 25th July 2008, and that was approximately 2 years ago. The trial proper is a few days away. Why the matter was not dealt with within the last 2 years, I don't know. This court had witnessed parties to a criminal proceeding not using the pre-trial conference procedure to its maximum. Serious pre-trial issues, like the present, were not dealt with seriously until the trial was around the corner.

10. In my view, it is too late, to "blot out" the prejudicial materials in a co-accused's caution interview statements, when the trial proper is few days away. To allow the defence's verbal applications in this matter, is to invite the possibility of potential disputes on the matter, thereby further prolonging the hearing of the matter. Given the late application, in my view, a fair remedy is to re-emphasize to the assessors the need to disregard the caution interview statements of a co-accused against another co-accused, because they are inadmissible evidence against the co-accused, and I order so accordingly.

Salesi Temo
ACTING JUDGE

AT Suva
1st September 2010