Ram v Reginam [1976] FJLawRp 20; [1976] 22 FLR 114 (30 July 1976)

[1976] 22 FLR 114

IN THE FIJI COURT OF APPEAL

SHIU RAM

v

REGINAM

[COURT OF APPEAL- Gould V.P., Marsack J.A., O'Regan J.A.), 22nd, 30th July]

Criminal Jurisdiction

Criminal law - practice and procedure evidence illegally obtained - within discretion of judge to admit or exclude such evidence.

Criminal law practice and procedure - articles seized from accused during search - whether proper to admit such articles as exhibits at the trial - whether such seizure a breach of Fiji Constitution s.9(1) - whether Criminal Procedure Codes 18(1) inconsistent with the Constitution and thus void.

The appellant was taken to a police station and during a search of his clothing incriminating documents were found. His counsel objected at the trial to these articles being produced as exhibits on the ground that the search was in contravention of the Constitution s. 9(1). He also prayed in aid the ruling of Grant J. in R. v. Mohammed Hanif 19 F.L.R. 16 holding that Criminal Procedure Code s. 18(1) was inconsistent with the Constitution and thus void.

Held: 1. The judge in R. v. Mohammed Hanif did not rule that s. 18(1) supra was void in its entirety, but only so far as it purported to give power to detain. This issue was further explored in R. v. Emori 21 F.L.R. 105.

2. Even if there had been an infringement of the appellant's personal rights when the articles were actually seized, it was in the discretion of the trial judge as to whether the articles seized should be exhibited or excluded.
(Kuruma v. R. [1955] A.C. 197 followed and applied)

Cases referred to:

Kuruma v. R. [1955] A.C. 197; [1955] 1 All E.R. 236.
King v. R. [1968] 2 All E.R. 610; [1969] 1 A.C. 304.
Jones v. Owens (1870) 34 J.P. 759.

Appeal against conviction in the Supreme Court for receiving stolen property.

H. M Patel for the appellant
I. Khan for the respondent.

Judgment of the Court (read by Marsack J.A.) [30th July 1976]-

This is an appeal against the conviction of the appellant entered in the Supreme Court at Suva on the 4th February 1976 of the offence of receiving stolen property. The grounds of appeal lodged with the notice were prepared by the appellant personally and were abandoned by counsel for the appellant at the hearing of the appeal. Counsel submitted, with the consent of the court, two substituted grounds and it is upon these that the appeal was argued.

These grounds were:-

GROUND 1: That the learned trial Judge erred in law in wrongly exercising his discretion in admitting the unsigned statement of Accused and alleged to be made by him on the 27/4/75 and also the charge statement made on the same date.

GROUND 2: That the learned Judge erred in law in not excluding the evidence regarding the illegal seizure of the accused's diary and the articles obtained on the 25/4/75 from the Accused when it was done by the Police in contravention of Section 9(1) of the Constitution of Fiji.

At the conclusion of the case for the appellant the court ruled that there was no substance in the first ground and counsel for the Crown was not called upon to reply to it.

The facts upon which ground 2 is based may be shortly stated. On the 25th April 1975 Police Sergeant Yadram took the appellant to the police station and there searched him, bringing out the appellant's personal diary, some travellers' cheques a considerable sum of money and a Fiji passport. The Sergeant in evidence stated that he had no search warrant, but had reason to suspect "that the Accused was involved in a passport offence and also in an offence connected with this bank draft." The Crown wished to tender these articles as exhibits in the trial of the appellant. The sergeant deposed that he was acting under the authority of section 18 of the Criminal Procedure Code. Counsel for the defence objected to the admission of the articles in evidence. In his contention the search of the appellant's person on the 25th April was in contravention of section 9(1) of the Constitution which reads: -

"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."

Counsel referred to a ruling given by Grant, J. (as he then was) in R. v. Mohammed Hanif (19 F.L.R. 16) in the course of which the learned judge says:

"I can come to no other conclusion than that the power of detention conferred by section 18(1) of the Criminal Procedure Code is inconsistent with the Constitution and void."

Later Mr Justice Grant held that as certain documents had been physically seized from the accused while he was detained and against his will, and for a number of other reasons, he would exercise his discretion against allowing the documents to be produced in evidence.

We do not read that ruling by the learned judge as holding that section 18(1) is void in its entirety but only insofar as it purports to give power to detain. In a later case the Supreme Court in R. v. Emori and Ors. (21 F.L.R. 105) followed the judgment of the Privy Council in Kuruma v. R. [1955] A.C. 197 where evidence obtained by means of a search which was not proved to be lawful was admitted on the following basis, as stated by Lord Goddard C.J.:

"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."

In dealing with section 18(1) of the Criminal Procedure Code in that case, Tuivaga J. found that it was not inconsistent with section 9 of the Constitution (relating to the power to search) but said that there was no question of the deprivation of personal liberty in the case before him, so nothing arose under section 5(1)(e) of the Constitution. There is therefore no actual conflict between these two rulings.

In the present case however, the learned trial judge did not find it necessary to arrive at any conclusion as to the exact scope of section 18(1) of the Criminal Procedure Code. Even if there had been an infringement of the appellant's basic rights when the articles mentioned were taken, the learned judge held that whether they should be admitted in or excluded from evidence was a matter for his discretion. He held that the evidential value of the articles found on the appellant was considerable. In particular, the evidence that the number of the allegedly stolen bank draft appears in the diary admittedly written by the appellant himself, the judge concluded may be of very great value indeed. He gave full consideration to the rulings quoted above, and also cited the decision of the Privy Council in King v. R. [1968] 2 All E.R. 610. He then exercised his discretion in favour of admitting the articles in question in evidence. It is that ruling which counsel for the appellant contends was wrong, and if so, he argues that the conviction cannot stand.

In our view the question is authoritatively answered by their Lordships of the Privy Council in King v. R. (supra). The facts in that case bore a considerable similarity to those in the case under appeal. There the argument for the appellant King was based on the submission that the evidence sought to be excluded had been obtained illegally and in violation of the terms of the Jamaican Constitution. In the course of the Privy Council judgment Lord Hodson cited with approval the dictum of Mellor J. in Jones v. Owens (1870) 34 J.P. 759:

"I think it would be a dangerous obstacle to the administration of justice if we were to hold, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. The justices rightly convicted the appellant."

Lord Hodson also cited the passage from Lord Goddard's judgment in the Kuruma case which has already been quoted above; and then went onto hold that the evidence in dispute had been properly admitted.

In our opinion we are bound to follow the decision of the Privy Council in King v. R. which appears to us strictly relevant to the question requiring determination by this court. We are satisfied that the ruling of the learned trial judge that he had a discretion to admit the evidence was correct and that there is no reason for this court to differ from the manner in which he exercised that discretion.

Appeal dismissed

Gould V.P.
Marsack J.A.
O'Regan J.A.