State v Shaheen - Ruling [2015] FJHC 461; HAC113.2012 (23 June 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC113 OF 2012

BETWEEN:

STATE

AND:

MOHAMMED SHAHEEN

Counsel : Ms.RukalesiUce/ Ms.Wakesa E. for State
Ms.SafairaRatu for the Accused.

Date of Hearing : 22nd of June, 2015
Date of Ruling : 23rd of June, 2015

Ruling

The Accused is charged with one count of Attempted Murder. Prosecution made an application in the absence of Assessors to declare the witness (alleged victim) as a hostile witness which was allowed by me on 22/6/2015.

These are the reasons for my decision:

A witness is considered hostile only when in the opinion of the Judge, he bears a hostile animus to the party calling him and so does not give his evidence fairly and with the desire to tell the truth: Archbold Criminal Pleading Evidence and Practise 39thedition at521.

Merely because the witness contradicts his testimony with the statement to the police or because his evidence is unfavourable to the party calling him, the witness cannot be considered hostile Phipson on Evidence (15th edition 2000) at 52.

It is always in the discretion of the Judge to allow an application to treat a witness as hostile and permit to cross examine by the party calling him.

The witness (alleged victim) in her evidence in chief said that the accused hit her on her stomach. Then she had gone unconscious. Then again she said the accused was playing around and he had a knife in his hand, and that she was not aware that he would stab her.

She again said that the accused was playing with her and accidently she got injured.

However, the State Counsel brought to the notice of the Court that she had told in her statement to Police that the accused kicked her on the leg and that she fell on the road. Then he had stabbed her on her stomach. When she shouted he had stabbed again.

Hence, I find that this is not a mere contradiction but witness is being hostile to the prosecution and that she does not give her evidence fairly and with the desire to tell the truth.

Therefore I declare that this witness is hostile and grant permission to the prosecution to cross examine her.

Priyantha Fernando
Judge

At Lautoka
23rd June, 2015.