Regina v Toloi [1975] FJLawRp 16; [1975] 21 FLR 105 (4 September 1975)

[1975] 21 FLR 105

IN THE SUPREME COURT OF FIJI

REGINA

v.

EMORI KALOU TOLOI AND OTHERS

[SUPREME COURT, 1975 (Tuivaga J.), 4th September]

Criminal Jurisdiction

Criminal law - evidence and proof - powers of police officers to search and seize goods reasonably suspected of having been stolen - cash and other exhibits found in possession of accuseds by police during investigation of robbery - whether admissible in evidence - whether seized in breach of Constitution - Criminal Procedure Code (Cap. 14) s. 18(1) - Constitution of Fiji ss. 5(1)(e), 9(1), 9(2)(a) (b)

Following a robbery, relying on Criminal Procedure Code s. 18(1), cash was seized by police from two of the appellants because it was suspected that the money was part of the proceeds of the robbery.

It was contended that such action on the part of the police contravened Fiji Constitution s. 9(1), and that the production of the money, seized should be ruled inadmissible and should not be received in evidence.

Held: 1. Fiji Constitution s. 9(1) had not altered in any way the powers of the police to search and detain goods reasonably suspected of having been stolen or unlawfully obtained.

2. The powers of the police to seize and detain goods unlawfully obtained were manifestly necessary in the interests of public order and public morality, and so fell within the exceptions contained in Fiji Constitution s.9(2)(a) (b).

3. In any event, even if the cash had been illegally seized in consequence of a breach of the Constitution, there was nothing in the present case to show that the seizure was carried out in a manner which was unfair or oppressive having regard to the nature and gravity of the offence under investigation.

4. Police officers who searched premises were entitled to seize the goods not only covered by the warrant, but other goods which they reasonably believed to have been stolen-Criminal Procedure Code (Cap. 14) s.104.

Cases referred to:

Chic Fashions Ltd. v. Jones [1967] EWCA Civ 4; [1968] 1 All E.R. 229; [1968] 2 W.L.R. 201
Ghani v. Jones [1969] 3 All E.R. 1700; [1969] 3 W.L.R. 1158.
Federated Saw Hill Employees v. James Moore & Sons [1909] HCA 43; (1910) 8 C.L.R. 465
R v Mohammed Hanif 19 F.L.R. 16
Kuruma v. R. [1955] A.C. 197; [1955] 1 All E.R. 236.
Herman King v. The Queen [1968] 2 All E.R. 610; [1969] 1 A.C. 304.
The People v. O'Brien [1965] I.R. 142;
Noor Mohammed v. R. [1949] A.C. 182; [1949] 1 All E.R. 365.
Callis v. Gunn [1964] 1 Q.B. 495; [1963] 3 All E.R. 677.
R. v. Murphy [1965] N.I.L.R. 138.

Ruling on a submission by defence counsel that certain exhibits seized by the police should not be admitted in evidence.

G. Trafford-Walker for the Crown.
S. M. Koya for the accuseds.

Tuivaga J.: [4th September 1975]-

This "trial within a trial" is being held because Mr Koya, counsel for the defence objects to the admissibility of certain exhibits taken from the 3rd and 1st accused respectively during the course of police investigation into this case.

The basis of the objection is two-fold. Firstly, it is said that the exhibits concerned i.e. in the case of the 3rd accused, a tin box, an exercise book and cash amounting to $423.86 and in the case of the 1st accused cash amounting to $286.08, had been seized from them and taken into police custody in breach of section 5(1)(e) and 9(1) of the Constitution. It is claimed that by reason of such breach of the Constitution the respective exhibits concerned are ipso facto inadmissible and should not be received in evidence against either the 3rd or 1st accused.

Secondly and, alternatively, it is said that the exhibits concerned in respect of the 3rd and 1st accused had been seized' in circumstances which were unfair and oppressive to them and should in the exercise of the Court's exclusionary discretion be disallowed as evidence in this case. It is also said under this alternative ground that the probative value of the exhibits concerned is outweighed by its prejudicial effect.

The circumstances in which the exhibits concerned were taken from the 3rd and 1st accused have been fully traversed in evidence that I need not recapitulate them. However, I have carefully considered the whole of the evidence adduced before me in this "trial within a trial" and have also given very close attention to the careful arguments presented by counsel on both sides for which I am most grateful.

Dealing first with the case of the 3rd accused, it is not disputed that a tin box containing a large sum of money and an exercise book with further cash among its pages were seized from the 3rd accused at the Old Suva Town Hall by Superintendent Sateki Umu at about 11.25 p.m. on the 27th March of ; this year. I think it is-true- to say that the Superintendent did so because he suspected that the money found in the 3rd accused's possession was part of the money stolen from the ANZ Banking Group in the afternoon of the 25th March. Whether that money was in fact part of the money stolen from the ANZ Banking Group is not at issue at this stage of the proceedings. What appears to be at issue is whether Superintendent Sateki Umu had reasonable grounds for believing that the money he found with the 3rd accused and took from him at the Old Suva Town Hall was part of the proceeds of the alleged robbery and whether he was empowered to do so under the provisions of section 18(l) of the Criminal Procedure Code.

It seems clear from the evidence that when the Superintendent and the police party visited the Old Suva Town Hall on the night of 27th March, the police were then in possession of material information obtained from a number of witnesses tending to implicate the 3rd accused as well as the 1st, 2nd and 4th accused in the alleged robbery. The 3rd accused was therefore clearly a suspect in connection with the alleged robbery on the night of the 27th March and was being sought, for interrogation. I am satisfied that when Superintendent Sateki Umu found the 3rd accused in possession of a large sum of money in big denominations at the Old Suva Town Hall, he had reasonable grounds for believing that it was part of the money stolen from the ANZ Banking Group and which the police have been trying to trace. It is clear too that Superintendent Umu took away the money together with the tin box and the exercise book because he considered those items as constituting material evidence in this case. The common law principle relating to the powers of police officers to seize goods reasonably suspected of having been stolen or unlawfully obtained was fully considered and re-stated by the English Court of Appeal in Chic Fashions Ltd. v Jones [1967] EWCA Civ 4; [1968] 1 All E.R. 229 where at page 238 Diplock L.J. said:

"Today stealing is more widespread than it has ever been since statistics of crime have been available. Stolen goods can be swiftly carried far from the scene of the theft. Today, ........................................ there are throughout the country regular police forces whose officers are charged with the duty of preventing and detecting crime. The common law has always recognised that the discharge of this duty may justify some interference with rights of innocent private citizens who would in other circumstances be entitled to its protection. At common law a constable,..................was entitled to arrest a person whom he had reasonable grounds for believing to have committed a serious crime (felony). At the time of the arrest the arrestor cannot know that the arrested person is guilty. The purpose of the arrest is to bring him before a court so that this issue may be tried. The justification of the arrest does not depend on the result of the subsequent trial. The reasonable belief of the arrestor at the time of the arrest was a good defence to an action of false imprisonment notwithstanding that it ultimately proved to be unfounded. The balance between the inviolability of personal liberty and the pursuit of public weal in this case came down on the side of him who acted reasonably in intended performance of what right-minded men would deem a duty to their fellow men; the prevention and detection of crime.

.....................................................................................................................................................................................................................................................................................................................................

Such is...................................................................................................

I decline to accept that a police officer who is unquestionably justified at common law in arresting a person whom he has reasonable grounds to believe is guilty of receiving stolen goods, is not likewise justified in the less draconian act of seizing what he, on reasonable grounds, believes to be the stolen goods in that person's possession. The purpose of the seizure in such a case is twofold: first, that the goods may be produced as material evidence on the prosecution of a criminal charge against the person from whom they were seized, and, secondly, that after the trial they may be restored to their rightful owner, and a similar justification exists for their detention so long as the detainer has reasonable grounds for believing that such a charge will lie and that the goods will be material evidence on its prosecution."

Similar observations were made by Salmon L, J. at pages 239 and 240: The same principle was succinctly expressed by Lord Denning, M.R. in the more recent case of Ghani v Jones [1969] 3 All E.R. 1700 where at page 1705 he said:

"What is the principle underlying these instances? We have to consider, on the one hand, the freedom of the individual. His privacy and his possessions are not to be invaded except for the most compelling reasons. On the other hand, we have to consider the interest of society at large in finding out wrong-doers and repressing crime. Honest citizens should help the police and not hinder them in their efforts to track down criminals.

Balancing these interests I should have thought that, in order to justify the taking of an article, when no man has been arrested or charged, the requisites must be satisfied:

First The police officers must have reasonable grounds for- believing that a serious offence has been committed-so serious that it is of the first importance that the offenders should be caught and brought to justice.

Secondly The police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber).

Thirdly The police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable.

Fourthly The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence............ As soon as the case is over, or it is decided not to go on with it, the article should be returned.

Finally The lawfulness of the conduct of the police must be judged at the time, and of by what happens afterwards."

The common law principle I have referred to above relating to the powers of police officers to seize and detain goods reasonably suspected of having been stolen or unlawfully obtained appears in the case of Fiji to have been embodied in a statutory form under section 18(l) of the Criminal Procedure Code. In other words, it seems to me that the provisions of that section are merely declaratory of the common law position as it has always existed in Fiji prior to the codification of our own criminal procedure. Section 18(l) provides as follows:

"18. (1) Any police officer who has reason to suspect that any article stolen or unlawfully obtained, or any article in respect of which a criminal offence or an offence against the customs laws has been, is being, or is about to be, committed, is being conveyed, whether on any person or in any vehicle, package or otherwise, or is concealed or carried on any person in a public place, or is concealed or contained in any vehicle or package in a public place, for the purpose of being conveyed, may, without warrant or other 'written authority, detain and search any such person, vehicle or package, and may take possession of and detain any such article which he may reasonably suspect to have been stolen or unlawfully obtained or in respect of which he may reasonably suspect that a criminal offence or an offence against the customs laws has been, is being, or is about to be committed, together with the package, if any, containing it, and may also detain the person conveying, concealing or carrying such article."

Having given very careful consideration to the matter, I do not think that the law as set out above relating to the powers of police officers to seize and detain goods reasonably suspected of having been stolen or unlawfully obtained has been altered in any way by the provisions of section 9 (1) of the Constitution. In my view the law in that regard is still the same as it existed before the Constitution came into operation in 1970. Section 9(1) states:

"9. (1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises."

As I have indicated section 18(1) of the Criminal Procedure Code is merely declaratory of the common law position and I think I am fortified in this conclusion by the terms of the exceptions to section 9(1) as contained in section 9(2)(a) and (b) of the Constitution which provides as follows:

"9. (2) Nothing contained or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision-

(a) in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development and utilisation of mineral resources, or the development or utilisation of any other property in such a manner as to promote the public benefit;

(b) for the purpose of protecting the rights or freedoms of other persons;"

I do not think there can be any doubt among right-thinking people that the powers vested in police officers to seize and detain goods reasonably suspected of having been stolen or unlawfully obtained are manifestly necessary in the interests of defence, public safety, public order, public morality etc., and for the purpose of protecting the rights and freedoms of other persons and for that reason are clearly " reasonably justifiable in a democratic society". Viewed in this light and paying particular regard to the facts of this case it seems to me that the provisions of section 18(1) of the Criminal Procedure Code in so far as they relate to the powers of police officers to seize and detain goods reasonably suspected of having been stolen are consonant and are not inconsistent with section 9(1) of the Constitution.

I think I am also fortified in the view I have taken that there has been no derogation by the Constitution of the powers of police officers given under section 18(1) of the Criminal Procedure Code to seize and detain goods reasonably suspected of having been stolen or unlawfully obtained by the following passage in Maxwell On Interpretation Of Statutes (12th Ed.) at page 116;

"Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible, clearness, and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them: a construction other than that which Parliament must be supposed to have intended. If the arguments on a question or interpretation are "fairly evenly balanced, that interpretation should be chosen which involves the least alteration of the existing law."

In this connection it is to be observed that it is well-established that the general rules adopted for construing a written Constitution are the same as for construing any other statute: see Federated Saw Mill Employees v. James Moore & Sons [1909] HCA 43; (1910) 8 C.L.R. 465 at 486.

It must be evident from the facts of this case that the act of seizing and detaining the exhibits concerned in this case was made prior to the 3rd accused being arrested or charged. In these circumstances the question of the application of section 5(1)(e) of the Constitution to section 18(l) of the Criminal Procedure Code does not arise for consideration. No question of deprivation of personal liberty within the meaning of section 5(1) of the Constitution arises in relation to the circumstances under which the exhibits concerned were seized from the 3rd accused and detained in police custody. In my respectful opinion the argument to the contrary is misconceived. I was referred in this connection to the Rulings given by this Court in R. v. Mohammed Hanif (19 F.L.R. 16) upon which Mr Koya, counsel for the defence, heavily relies for his contention that Superintendent Sateki Umu had no legal authority for seizing and detaining the exhibits concerned and was therefore acting in breach of the Constitution when he purported to seize the exhibits concerned at the Old Suva, Town Hall. It seems clear to me that the case referred to was decided on its own particular facts which conspicuously bear no resemblance to the circumstances of the case I am now considering. In that case the police officer concerned had said that he had no reason to suspect that the accused had committed a criminal offence but in spite of that he detained the accused in the purported exercise of his powers under section 18(l) of the Criminal Procedure Code. That case is also quite different from the present case in other important respects. I feel therefore I can derive no assistance from trying to equate the decisions under the Rulings in the Mohammed Hanif Case with the present case. I have consequently not done so. Thus having come to the conclusion that the powers of police officers to seize and detain goods under section 18(1) of the Criminal Procedure Code have not been taken away or derogated from by section 9(1) of the Constitution which is, in any event, the operative section in the particular circumstances of the present case, it follows that I do not think there was anything improper or illegal in the manner in which Superintendent Sateki Umu took possession of the exhibits concerned from the 3rd accused at the Old Suva Town Hall. Under the circumstances he had the necessary powers to do so. I am satisfied therefore that there has been no breach or violation of the Constitution with respect to the seizure and detention of the exhibits concerned.

However, that is not by any means the end of the matter. Supposing I am wrong in my conclusion and that there has indeed as claimed by Mr Koya been a breach of the Constitution arising from the seizure of the exhibits concerned from the 3rd accused, the question then arises what is, not what should be, the legal position? I put the matter in this way because Mr Koya feels that an exclusionary rule akin to that applicable in the United States of America should be introduced in Fiji where our Constitution which is the supreme law of Fiji, has been contravened, however technical such breach might be. Under this exclusionary rule all evidence obtained in consequence of a breach of the Constitution becomes per se inadmissible and the Courts have no choice but to exclude such evidence. I may observe that Mr Koya's suggestion, if adapted, would represent a revolutionary change in our existing system of jurisprudence. Apart from whatever merits such a suggestion may have I very much doubt whether I can with a stroke of the pen make such a sweeping change in our law. As every lawyer well knows the Courts exist to enforce or implement, not to make the law. Law making is a matter for Parliament. It is clear that the weight of judicial authorities binding on this Court is conclusively against the adoption of an exclusionary rule of evidence.

What then is the legal position where the Constitution has been contravened? It is well-settled that it is in no way different in result from any other breach of the law of the land. This is clear, from the opinion of the Privy Council by which this Court is bound in the case of Kuruma v. R. (1955) A.C. 197: In that case Lord Goddard, C.J. had said:

"...........................................................................................................the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how the evidence was obtained."

Although the rule of law laid down in the above case may appear harsh, it is not in fact so in practice because of the overriding discretion vested in the courts to exclude admissible evidence obtained illegally. In exercising this discretion the courts will, apart from the question of unfairness to the accused, have regard to the seriousness or otherwise of the illegality. From the particular nature of this case and the circumstances surrounding it, it is clear that the exhibits concerned constitute material evidence and for that reason is admissible as a matter of law against the 3rd accused. Of course, even when admissible, evidence obtained in breach of the Constitution, may still be excluded under the discretionary powers of the Court. The position of the Court's discretion in relation to evidence, obtained illegally or in breach of constitutional provisions has recently been re-stated by the Privy Council in the important case of Herman King v The Queen [1968] 2 All E.R. 610 where at p 617 one finds following passage:

"The appellant relied in support of his submission that the evidence illegally obtained against him should be excluded on the argument that it was obtained in violation of his constitutional rights, and reference was made to an Irish case of The People (A.G.) v. O'Brien [1965] I.R. 142 where the point was discussed by the Supreme Court of Eire. The provision of the Jamaican Constitution scheduled to the Jamaica (Constitution) Order in Council, 1962 S.I. 1962 No.-1550; (paragraph 19) gives protection to persons against search of persons or property without consent. This constitutional right may or may not be enshrined in a written constitution, but it seems to their Lordships, that it matters not whether it depends on such enshrinement or simply on the common law as it would do in this country. In either event, the discretion of the court must be exercised and has not been taken away by the declaration; of the right in written form."

However, the Court's discretion to disallow admissible evidence will only be exercised if the strict rules of admissibility would operate unfairly against the accused (see Noor Mohammed v R. [1949] A.C. 1982). What constitutes unfairness to the accused in the present context has been the subject of weighty judicial pronouncements recently. In Callis v. Gunn [1964] 1 Q.B. 495 Lord Parker C.J. at page 502 said:

"..................... That discretion, as I understand it, would certainly be exercised by excluding the evidence if there was any suggestion of it having been obtained oppressively, by false representations, by a trick, by threats, by bribes, anything of that sort."

Again in Reg. v. Murphy [1965] N.I.L.R. 138 a case which was approved by the Privy Council in Herman King v. The Queen (supra) and where the above passage was commented upon, the Court observed at page 147 as follows:

"We do not read this passage as doing more than, listing a variety of classes of oppressive conduct which would justify exclusion. It certainly gives no ground for saying that any evidence obtained by any false representation or trick is to be regarded as oppressive and left out of consideration. Detection by deception is a form of police procedure to be directed and used sparingly and with circumspection; but as a method it is as old as the constable in plain clothes and, regrettable though the fact may be, the day has not yet come when it would be safe to say that law and order could always be enforced and the public safety protected without occasional resort to it. We find that conclusion hard to avoid on any survey of the preventive and enforcement functions of the police but it is enough to point to the salient facts of the present appeal. The appellant was beyond all doubt a serious security risk; this was revealed by the trick of misrepresentation practised by the police as already described; and no other way of obtaining this revelation has been demonstrated or suggested. We cannot hold that this was necessarily oppressive or that Lord Parker of Waddington intended to lay down any rule of law which meant that it was the duty of the court-martial, once the trick used by the police had been established, to reject the evidence that followed from it."

Having held that unfairness to the accused is not susceptible of close definition, the Court went on to say:

"it must be judged in the light of all the material facts and findings and all the surrounding circumstances. The position of the accused, the nature of the investigation, and the gravity or otherwise of the suspected offence, may all be relevant. That is not to say that the standard of fairness must bear some sort of inverse proportion to the extent to which the public interest may be involved, but different offences may pose different problems for the police and justify different methods."

Applying the above considerations to the present case I am far from satisfied that the exhibits concerned were obtained in a manner which was unfair or oppressive to the 3rd accused having regard to the nature and gravity of the offence under investigation. When a person is reasonably suspected by the police to be implicated in a serious crime he must perforce expect a certain amount of interference to his orderly existence. This is inevitable in our system of justice. Interrogation of persons and collection of exhibits are necessary concomitants of any police criminal investigation. Life is not all milk and honey; irritations of one kind or another are part and parcel of human experience. Something more than mere irritation to one's sensibilities is contemplated in the concept of unfairness as the courts have come to understand it. The conduct of Superintendent Sateki Umu at the Old Suva Town Hall was no doubt irritating to the 3rd accused but certainly not unfair in the context of the particular investigation that had to be carried out in the interest of society. The exhibits concerned are clearly relevant to this trial of alleged robbery and in the absence of any clear evidence of unfair or oppressive conduct on the part of the police I can find no proper grounds upon which to disallow admissible evidence in the exercise of the Court's discretion. Furthermore in my view the evidential value of the exhibits concerned clearly outweighs whatever prejudicial effect the impugned evidence might possess.

I therefore rule that the exhibits relating to the 3rd accused may be admitted in evidence.

So far as the case of the 1st accused is concerned it is clear that he was also a suspect in connection with the alleged robbery on the morning of the 28th March when the police officers went to Vatuwaqa and found him there in someone else's house. He was searched and found to be in possession of a large sum of money. The police officers were on that occasion armed with a search warrant which admittedly was issued in respect of premises in which the 2nd accused was thought to have been living. The powers of police officers executing a search warrant were discussed by Lord Denning, M.R. in Chic Fashions Ltd. v. Jones (supra), a case to which reference has already been made in connection with the powers of police officers to seize and detain goods reasonably suspected of having been stolen or obtained unlawfully. In that case Lord Denning was considering the powers of a search warrant issued under similar statutory provisions as in section 104 of the Criminal Procedure Code. At page 236 he said:

"We have to consider, on the one hand, the freedom of the individual. The security of his home is not to be broken except for the most compelling reason. On the other hand, we have to consider the interest of society at large in finding out wrong-doors and repressing crime. In these present times, with the ever-increasing wickedness there is about, honest citizens must help the police and not hinder them in their efforts to track down criminals. I look at it in this way. So far as a man's individual liberty is concerned, the law is settled concerning powers of arrest. A constable may arrest him and deprive him of his liberty, if he has reasonable grounds for believing that a felony (now an "arrestable offence") has been committed and that he is the man. I see no reason why goods should be more sacred than persons. In my opinion, when a constable enters a house by virtue of a search warrant for stolen goods, he may seize not only the goads which he reasonably believes to be covered by the warrant, but also any other goods which he believes on reasonable grounds to have been stolen and to be material evidence on a charge of stealing or receiving against the person in possession of them or anyone associated with him. Test it this way. Suppose the constable does not find the goods mentioned in the warrant, but finds other goods which he reasonably believes to be stolen. Is he to quit the premises and go back to the magistrate and ask for another search warrant to cover these other goods? If he went away, I should imagine that, in nine cases out of ten, by the time when he came back with a warrant, these other goods would have disappeared. The true owner would not recover them. The evidence of the crime would have been lost. That would be to favour thieves and to discourage honest men. Even if it should turn out that the constable was mistaken and that the other goods were not stolen goods at all, nevertheless, so long as he acted reasonably and did not retain them longer than necessary, he is protected. The lawfulness of his conduct must be judged at the time and not by what happens afterwards."

In my view having regard to the progress the police had already made in their investigation in relation to the 1st accused and the particular circumstances in which the 1st accused was found to be in possession of fourteen $20 notes, Detective Corporal Moses Driver who was undoubtedly acting under instructions from his superiors must be taken to have had reasonable grounds for believing that the money so found was part of the amount stolen from the ANZ Banking Group. I am satisfied that Detective Corporal Moses Driver acted within his powers as a police officer and pursuant to a search warrant in seizing and detaining the cash as material evidence against the 1st accused. Under these circumstances I do not accept that there was anything improper or illegal in the manner in which the money found on the 1st accused was taken by the police on the morning of 28th March. I am satisfied that there are no grounds whatever for contending that there was a breach or violation of the Constitution in respect of the seizure of money from the 1st accused.

Even if I am wrong and there has indeed been a breach of the Constitution with respect to the seizure of money from the 1st accused, I would also because of the particular relevance of the cash exhibits to this trial exercise the Court's discretion; to admit such evidence. I do so because I am far from satisfied that the seizure of money from the 1st accused was made in a manner which was unfair or oppressive to him. Furthermore, in my view the evidential value of the exhibits concerned clearly, outweighs whatever prejudicial effect the impugned evidence might possess.

I therefore also rule that the cash exhibits relating to the 1st accused may be admitted in evidence.

Submissions overruled; exhibits admitted in evidence.

Tuivaga J.