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Magistrates Court of Fiji |
MAGISTRATE COURT AT SUVA
Criminal Case No. 1939 of 1996
STATE
VS
WAISAKE NAVUNIGASAU
And
AMANI ROKOTINAVITI
BEFORE SYED MUKHTAR SHAH ESQ
RESIDENT MAGISTRATE
For Prosecution: Ms E Rice
For First Accused: Mr Mehboob Raza
For Second Accused: Mr Kelemedi Bulewa
Date of Hearing: 11/9/96, 13/9/96 and 18/9/96
Date of Judgment: 25 October 1996
JUDGMENT
The two accused have been charged with the offence of Obstructing the Course of Justice contrary to Section 131(b) of the Penal Code, Cap 17. The statement of Offence reads as follows:-
CHARGE
FIRST COUNT
Statement of Offence (a)
OBSTRUCTING THE COURSE OF JUSTICE:
Contrary to Section 131(b) of the Penal Code, Cap 17.
Particulars of Offence (b)
WAISAKE NAVUNIGASAU on the 22nd day of November 1995 in Suva in the Central Division obstructed the course of justice by endeavouring to prevent EMA TINAI a person lawfully bound to give evidence in the High Court Criminal Case No. 0005 of 1995 from so appearing and giving evidence when he directed the said EMA TINAI against her will to making a statutory declaration stating among other things that there had been no sexual encounter between her and the aforesaid WAISAKE NAVUNIGASAU.
SECOND COUNT
Statement of Offence
OBSTRUCTING THE COURSE OF JUSTICE:
Contrary to Section 131(b) of the Penal Code, Cap 17.
Particulars of Offence
AMANI ROKOTINAVITI on the 22nd day of November 1995 in Raiwaqa in the Central Division obstructed the course of justice by endeavouring to prevent EMA TINAI a person lawfully bound to give evidence in the High Court Criminal Case No. 005 of 1995 from so appearing and giving evidence when he witnessed a statutory declaration of the said EMA TINAI which stated that she did not have any sexual encounter with WAISAKE NAVUNIGASAU, although he was informed that the contents were untrue.
Both the accused have pleaded not guilty. The prosecution called 2 witnesses. At the end of the prosecution case the two learned senior defence counsel submitted that there was no case to answer. I shall come back to that later.
At this stage it is important to refer to Exhibit 1 which is a statutory declaration dated 22nd November 1995. It is this exhibit which is the subject of the charge against both the accused.
PW1 told the court that on 21st November 1995 she was at home when her father (accused 1) and a bailiff came to her house. A little later the two of them went to the government buildings with her. She was asked by her father to sign a statutory declaration. They went to the office of a solicitor, Kini Maraiwai, who told them to go home as he will pick her up later. That day she did not sign any statutory declaration. The following day (22/11/95) the two accused went to her house and asked her to sign another statutory declaration which she wrote. She told the court that she had already written a statutory declaration earlier (Exhibit 2). She said that another sentence was added in the second in the second statutory declaration stating that there was no sexual encounter but that this sentence was not in the first one. This she said was brought to the attention of the second accused who told her that he was not aware of any other declaration. The second accused then witnessed it. The two accused then left her and she said that she did nothing after they left except to tell her aunty that the two had come.
PW2 was a police officer. He said that he was called by the office of the Director of Public Prosecutions (“DPP”) and advised of an allegation by PW1 that a statutory declaration was written by her and witnessed by a lawyer. He was also told that it was made without PW1’s consent. That is, a paragraph was added in the second declaration which was not willingly made by PW1. As a result he interviewed both the accused.
When the prosecution closed its case, both Mr Bulewa and Mr Raza submitted that there was no case to answer. Mr Raza submitted that nowhere did PW1 say that she was hindered or prevented or dissuaded from giving evidence by ant person. He referred to Exhibit 2 where PW1 said that she did not want to proceed against her father. He further stated that PW1 never told anyone that she was ever prevented by anyone in coming to Court. In reference to the charge against the first accused that he directed PW1, he submitted that in fact PW1 in isolation of her home wrote the statutory declaration in issue. She added the words “To Whom it may Concern” voluntarily. He further submitted that if there was no evidence of force, then there is no evidence that she wrote the declaration against her will. Mr Bulewa submitted that the essential ingredients of the charge are missing. He said that Prosecution evidence was so badly discredited that it should not be relied upon. He submitted that it should be proved that the second accused had the criminal intent of obstructing. He said that there is no evidence to back that allegation. He further submitted that accused 2 had not been charged with conspiracy. Under section 131(b) he submitted that one should prove criminal complicity and that there was no evidence of this before the Court. Then Mr Bulewa submitted that the second accused has a legal obligation to witness any document as a Commissioner of Oaths and once he discharged that obligation the matter rested there. In this respect he submitted that the second accused was concerned with the signature only and not with the contents of the document. Mr Bulewa referred to the evidence of PW1 who had testified that the second accused was a total stranger to her when he witnessed her signature. He also submitted that the onus was on the Prosecution to disprove good faith on the part of the second accused.
Mr Bulewa then remarked that the Director of Public Prosecutions has full control of cases. Section 85 (4) of 1970 Constitution spells out her functions in detail. In this regard he submitted that Exhibit 1 was directed to any person who had lawful authority to stop proceeding against the first accused. He said that in spite of PW1’s wishes not to proceed, the office of the “DPP” proceeded against the first accused. He then submitted that “DPP” had no power to direct an investigation and if that happens, it is abuse of office. In this case he submitted that the “DPP” acted outside her constitutional powers by directing the investigation. This he stated was wrong practise and should discontinue. He referred to the evidence of PW2 who told the Court that he was being directed by the “DPP” and not by his superior officer. This Mr Bulewa said was nothing but an abuse of office by the “DPP”. He submitted that consequently whatever evidence the investigating officer adduced or gathered, it was tainted with that unlawfulness.
Mr Bulewa further submitted that corroboration of PW1’s evidence is required as PW1’s evidence was very inconsistent and not safe to rely on. He then submitted that original documents were not before the Court and as such the credibility of evidence abused should be considered.
The learned prosecutor then made submissions. Firstly, she submitted that Section 131 (b) refers to “endeavours” and she said that there was unchallenged evidence to the effect that PW1 was taken to the Government Building. Secondly, she questioned why the first accused was so keen to make the second declaration. She submitted that one could infer that he intended to use it to get the charge against him dropped. She said that if the charge was withdrawn, PW1 would have been prevented from giving evidence. In other words, she submitted that the first accused was endeavouring to prevent PW1 from giving evidence in a court of law. Thirdly, she submitted that PW1 had said that it was not on her free will that she wrote the second declaration. Fourthly, she submitted that at no stage did both defence counsel question PW1 about her statement in evidence-in-chief that the statutory declaration of 22nd November 1995 was not true. She remarked that because it was not challenged, they have taken to have accepted it. Fifthly, on the question of mens rea, she submitted that the truth of knowledge of the circumstance is required under Section 131 (b). She said that the first accused knew that he was the accused in a rape case and was on bail condition not to approach PW1 yet he went to her. Sixthly, she said that the document of 6/11/95 written by PW1 was not relevant.
The learned Prosecutor Miss Rice then submitted that there was no requirement in law to spell out the exact offence prior to giving caution and as such all replies after caution are admissible. She then further submitted that the second accused knew the likely consequences of the document in question. She then submitted that there was ample evidence before the tribunal to convict the two accused.
In respect of the involvement of the DPP as pointed by Mr Bulewa, Ms Rice said that one should not forget the circumstances surrounding the issue i.e. the investigation pertaining to a rape case was being carried out.
After submissions by the learned Prosecutor, Mr Raza made some observations. Firstly, he said that it was very serious for a counsel to mislead the Court such as by saying that there is no law to say that the allegation should be stated in full when interviewing an accused. Secondly the Prosecution must prove the case beyond reasonable doubt. In this case he submitted that PW1 remained silent when questioned on many occasions. Thirdly, to say that the document of 6 November 1995 was not relevant was incorrect. He stated that PW1 was not interested to proceed in the High Court matter and this was obvious from the document of 6/11/95 and therefore he said that the High Court was misled. Fourthly, to allow a witness to read a statement just before trial is not correct and the court should be informed about it.
Mr Bulewa then remarked that is a very dangerous proposition to say that when interviewing a suspect, the interviewing officer must not put the allegation in full. It is a constitutional requirement to so, he said, in the interest of fair trial and justice. He said that the defective nature of the interview makes the whole interview bad and inadmissible.
In considering the submission of no case to answer I have taken into account all facts and evidence before the court. In my view, it is prudent to at least briefly state various cases and provisions which I have taken into account in deciding as to whether there is a case to answer.
Fatiaki J in State v Temo Roy Sekope Stuart, Cr. Appeal No. 20 of 1989, said that in his view the statutory question which a magistrate faced with a submission of no case to answer is required to ask is:-
“Has the prosecution made out a case against the accused sufficient to require him to make a defence?”
His Honour also stated that existing case law has firmly established that the test at the no case to answer stage is objective in so far as it relates to the evidence produced by the prosecution in support of the charge and in regard to its sufficiency to convict as it would appear to a reasonable tribunal trying the case.
In a Practice Note of the Queen’s Bench Division reported in (1962) 1 All E.R. 448, Lord Parker C.J. stated two instances when a no case to answer submission may properly be made and upheld. Firstly, when there has been no evidence to prove an essential element in the offence. Secondly, when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict it. The learned Chief Justice warned that apart from these two situations a tribunal should not in general be called ‘on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.
Widgery C.J. in Barker (1977) 65 Cr. App. R 287 at page 288 when dealing with the approach to be adopted by the Judge at the close of the Crown’s case on a submission of “no case” said:-
“It cannot be too clearly stated that the Judge’s obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is not the Judge’s job to weigh the evidence, decide who is telling the truth and to stop the case merely because he thinks the witness is lying. To do that would be to usurp the function of the jury....”
The English Court of Appeal approved the above passage in Galbraith (1981) 2 All E.R. 1060. In that case the court laid down guidelines in these terms.
“How then should the Judge approach a submission of ‘no case’? (1) If there is no evidence that the crime alleged had been committed by the defendant there is no difficulty. The Judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence- (a) where the Judge comes to the conclusion that the Crown’s evidence taken at its highest is such that jury properly directed could not convict on it, it is his duty, on a submission being made to stop the case. (b) Where, however, the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried ...”
In Haw Tua Tua v Public Prosecutor (1982) AC 136, the Privy Council was dealing with an appeal from the Court of Criminal Appeal from Singapore when it made the following remarks at page 151:-
“The proper attitude of mind that the decider of fact ought to adopt towards the prosecution’s evidence at the conclusion of the prosecution’s case is most easily identified by considering a criminal trial before a judge and jury, such as occurs in England and occurred in Singapore until its final abolition in capital cases in 1969. Here the decision making function is divided; questions of law are for the judge, questions of fact are for the jury. It is well established that in a jury trial at the conclusion of the prosecution’s case it is the judge’s function to decide for himself whether evidence has been adduced which, if it were to be accepted by the jury as accurate, would establish each essential element in the alleged offence: for what are the essential elements in any criminal offence is a question of law. If there is no evidence (or only evidence that is so inherently incredible that no reasonable person could accept it as being true) to prove anyone or more of those essential elements, it is the judge’s duty to direct an acquittal, for it is only upon evidence that juries are entitled to ‘convict; but if there is some evidence, the judge must let the case go on.”
On the same page their Lordships remarked that the same principle applies to criminal trials where the combined roles of decider of law and decider of facts are vested in a single judge.
In Moidean s/o Hassan v Reginam. Cr. App. No. 52 of 1984, the Court said that in each instance a judge has to ask himself and answer the question: “Is there no evidence that the accused committed the offence?”
I am also mindful of the decision of Fatiaki J in The State v Vijay Kapoor and Kaylash Chandra (Suva High Court, Criminal Case Number 0006/94) and the decision of Grant J (as he was then) in R v Jai Chand (1972) 18 F.L.R. 101.
Section 210 of the Criminal Procedure Code Cap.21, states that:-
“If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused.”
So much then for the law and I turn next to consider the Prosecutor’s evidence.
The statutory declaration dated 22/11/95 (Exhibit 1) states as follows:
“I Ema Tinai Navunigasau of Duivosavosa Lane Bryce Street, Raiwaqa solemnly and sincerely declare that on this Wednesday 22nd of November 1995 that the case pending in court regarding the accused Waisake N. Navunigasau be considered null and void.
I want to unequivocally declare here in all soberness that at no time was there any sexual encounter. And no time did no rape take place.
In view of the consequences that may emanate from the said case regarding the future of our family as a whole, I do hereby declare that I have made up my mind to have the whole case withdrawn and quashed........................”
This statutory declaration was witnessed by the second accused after it was signed by PW1.
For the sake of completeness, I will now reproduce the document dated 6/11/95 (exhibit 2) written by PW1 and described by her in her own handwriting as “STATUTORY DECLARATION”. It is as follows:
“STATUTORY DECLARATION
To Whom it may Concern
I, Ema Tinai Navunigasau solemnly and sincerely declare on this day, 6th November 1995, that the case pending in court regarding the accused, Waisake Navunigasau be considered null and void.
In view of the results pertaining to the said case, I realized that the effect of the matter will greatly affect the future of our family as a whole. With my five younger brothers and two younger sisters future are concerned, this will have a great bearing on their lives and I will never allow that to happen.
This is the very reason why I have made up my mind to have the whole case squashed.
Signed: E.T. Navunigasau
Witness: “
Both the accused are charged with the same offence but the particulars differ in respect of both of them. In respect of the first accused, the Prosecution has to prove that the accused committed the offence of obstructing the course of justice by:
“............... endeavouring to prevent .......a person lawfully bound to give evidence ........... when he directed ......... against her will ...”
In respect of the second accused, the Prosecution has to prove that he committed the same offence by:
“....... endeavouring to prevent ........ from so appearing and giving evidence when he witnessed a statutory declaration ....... Although he was informed that the contents were untrue”.
During cross-examination by Mr Raza, PW1 agreed that she wrote the document of 6/11/95 herself. At that time she said that the first accused was not there. She also agreed that she knew what she was doing and did not want the case against the first accused to proceed. She said that she wanted it to be given to whoever was in authority so that the case against accused 1 would not proceed. She further agreed that she herself wrote “To whom it may Concern”. She wanted it to be read by anyone in authority including DPP or a Magistrate. This she admitted she wrote without persuasion from anyone. She further admitted that when she made a statement to Police on 23/11/95 she referred to it. PW1 also admitted writing the words “Statutory Declaration” herself on her own free will. She further agreed that when she wrote those words she was taking an Oath within herself.
In respect of the declaration of 22/11/95 she said that she wrote it herself in her own handwriting. However, she said that she did not want to write the second declaration because she had already written one before on 6/11/95. Then she said:
“Because I had already written the first declaration, I do not want anyone to come and tell me what to write”.
The offending words complained of in the first count state that “... there had been no sexual encounter between her and the aforesaid......”. During cross-examination, PW1 agreed that the meanings of the two declarations are the same. When it was put to her that once the second document was signed that was the end of the matter, she replied “Yes”. She also agreed that the first accused did not talk to her before the declaration of 22/11/95 was signed. PW1 said that she could not recall whether on 23/11/95 she told the Police regarding force being used to get the declaration in question signed. When further it was put to her that during evidence-in-chief she kept on talking about force but she did not refer to whether she was forced or not to Police, she remained silent. Furthermore, when questioned by Mr Raza she agreed that she had read her statement on the same morning in the learned Prosecutor’s office before testifying in Court. She also said that she was asked to read her statement by Ms Rice.
When Mr Bulewa cross-examined PW1 he put to her that in her statement in line 39 she said that the two accused home and told her to write another statutory declaration. Then Mr Bulewa put to her as follows:
“You in cross-examination were asked if any conversation took place between you and accused 1 you said no it did not. So two contradictory statements were made by you. You said that before, during or after you had no conversation with your father. Which is correct?” She replied that there was no conversation at all. Furthermore she replied to Mr Bulewa that she wrote the document of 6/11/95 on her own and that everything there was her own thought and on her own free will. She also agreed that she knew that this document of 6/11/95 will be used by people in the case in the High Court. She admitted that she was aware of the nature of the case and that she knew that she knew that this document could bring that proceeding in the High Court to an end. I now quote just a few questions with answers relevant for present purpose.
“Q - You wanted to attack the heart of proceedings to get the matter to an end in the High Court?
A - Yes.
Q - So you knew that to stop the proceedings you had to hit the foundation of the complaint of a sexual nature?
A - Yes – that’s true.
Q – You knew that only way to kill heart of that complaint is to write this document of 22/11/95?
A – Yes.
Q – You knew this very well when you wrote the statutory declaration of 6/11/95?
A – Yes – I wanted case ended there.
Q - From 6th to 22nd November is 16 days?
A - Yes.
Q – Till 6/11/95 or on 6/11/95 did you ever cast your eyes on accused 2?
A - No.
Q - Accused 2 total stranger to you till 22/11/95?
A - Yes.
Q - First time saw him on 22/11/95?
A - Yes.
Q - At your house saw him for the first time in Raiwaqa?
A - Yes.
Q - When you came to the government building, did you see him or meet him?
A - No.”
During cross-examination by Mr Bulewa PW1 also agreed that she was told about the document of 6/11/95 being defective. She said “yes” after actually saying “no”. However, on further questioning by Mr Bulewa whether she was told to make her intention clear in respect of the document of 6/11/95, she replied “can’t remember”. When she was further reminded that she was told by them in very specific terms, she replied again “cannot remember.”
In completing his cross-examination of PW1, Mr Bulewa put to her that when she saw the second accused on 22/11/95 in Raiwaqa she had already written the statutory declaration of that date, she replied “yes”. Then Mr Bulewa put to her:
“The purpose of my client (accused 2) coming to you was for him to witness what had already been written by you”. She again replied “yes”.
One may get some assistance about the offence of obstructing the course of justice by considering cases dealing with perverting the course of justice.
The English Court of Appeal in R v Kellett (1976) 1 Q.B. 372 had this to say on the issue of perversion of course of Justice:
“Perversion of the course of justice is per se an offence against the public weal. An attempt (or incitement) to pervert (or defeat) the (due) course of justice is an offence against the common law and no less than a conspiracy to pervert it was a punishable misdemeanour: Reg. v. Grimes (Note) (1968) 3 All E.R. 179, 181, per Kilner Brown J, Reg. v. Vreones [1891] UKLawRpKQB 14; (1891) 1 Q.B. 360, 367; Rex v. Greenburg (1919) 63 S.J. 553; Reg. v. Andrews (1973) Q.B. 422, 425 and Reg. v Panayiotou (1973) 1 W.L.R. 1032. Those cases show also that tampering with evidence, including a person to give false evidence or not to give evidence, for reward are instances of this common law offence, whether the evidence is to be given in criminal or in civil proceedings and whether the inducement is effective or, as in this case, not. But they were all concerned with the manufacture of false evidence or the withdrawal of a true complaint. They do not deal with the limits of the offence or indicate whether it can be committed where the evidence of the potential witness is false or may be false, or whether it can be committed where the means used are not bribery or reward but threats, or where the threats used are threats to exercise a legal right, or where the intention, or one of intentions of him who approaches the potential witness is to exercise such a right or to see that justice, is done to himself or another.
It would seem repugnant to justice and to common sense if in every one of these cases the “offender” could be said to be attempting to pervert or defeat or obstruct the course or the ends of justice”.
Sir James Fitzjames Stephen in article 191 of his Digest of the Criminal Law, 9th ed. (1950), says:
“Everyone commits a misdemeanour who ...... (b) in order to obstruct the due course of justice, dissuades, hinders, or prevents any person lawfully bound to appear and give evidence as a witness from so appearing and giving evidence, or endeavours to do so, ......”
Russell on Crime, 12th ed. (1964), vol. 1, p. 312 has this to say on “Interference with witnesses”:
“We would not consider that the offence of attempting to pervert the course of justice would necessarily be committed by a person who tried to persuade a false witness, or even a witness he believed to be false, to speak the truth or to refrain from giving false evidence.
Secondly, with this among other authorities in mind, we think that however proper the end the means must not be improper. Even if the intention of the meddler with a witness is to prevent perjury and injustice, he commits the offence if he meddles by unlawful means.
Threats and bribery are the means used by offenders in the cases, and any pressure by those means-or by force, as for example by actually assaulting or detaining a witness-would, in our opinion, be an attempt to pervert the course of justice by unlawfully or wrongfully interfering with a witness. If he alters his evidence or will not give it “through affection, fear, gain, reward or hope or promise thereof” (in the words of the oath which used to be administered to the foreman of a grand jury), the course of justice is perverted, whether his evidence is true or false and whether or not it is believed to be so by him who puts him in fear of hope”.
In Rex v. Greenburg 63 S.J. 553, Osler J.A at page 250 said:
“That is plainly an attempt to dissuade the witness from giving evidence, and, having been corruptly done, is within the very words of the section. Whether the accused was honest in his belief or not is immaterial. It would have not been unlawful for him, by argument or explanation to have attempted to dissuade the witness from giving what the accused may honestly believed to be an untrue account of the transaction, and to give what may have appeared to him to be the true one ......”
Then Maclaren J. A. at page 251 said:
“Even the most desirable end cannot justify the employment of corrupt means. The fountain of justice should be kept pure and not be corrupted at its source. It was quite open to the accused, believing, as he did, in the innocence of his brother, to show to Weller, if he could, such evidence or facts as might convince that he had been mistaken in his previous testimony. He did not, however, rely upon such means, but, on the contrary, chose to attempt to accomplish his end by bribery, and thereby brought himself within the very language of the statute ...”
In R v. Toney, the Times Law Report of 15 December 1992 at page 608, The Court of Appeal held that in cases involving the offence of preventing the course of justice an intentional interference with a witness is enough. The Court summarized the position as follows:
1. In the great majority of cases of perverting the course of justice by interfering with a witness the actus reus would be accompanied by unlawful means such as bribery, threats or improper pressure.
2. The use of unlawful means was not, however, an essential ingredient of the offence.
3. In cases where the defendant might otherwise have a defence of lawful excuse, for example, where his purpose was to persuade a false witness, or one he believed to be false, not to commit perjury he would none the less be liable if he employed unlawful means.
4. Unlawful means in that context included a threat to do an otherwise lawful act or to exercise a legal right, but in all cases the prosecution had to prove the necessary intent.
In R v. Mohan (1975) 2 W. L. R. 859, it was held that mens rea was an essential ingredient of the offence of an attempt to commit a crime.
In the present case, let us not lose sight of the fact that both accused have been charged with “endeavouring” to prevent PW1 from giving evidence.
R v. Bassi (1985) Crim L. R. 671 was a Case involving an act tending to pervert the cause of public justice. The applicant was convicted of doing acts tending or
intended to pervert the course of public justice. His car had been involved in an accident. The other driver concerned had been charged
with driving whilst disqualified. The applicant recovered his repair charges from his insurance company. Some weeks later he telephoned
the wife of the other driver offering not to give evidence (or to give evidence exonerating the other driver) in return for payment.
The applicant sought leave to appeal against conviction. Counsel submitted that to absent oneself from court in such circumstances
was not an act that perverts the course of justice and that the prosecution must show not only that the act done had tendency to
pervert the course of justice but also that it had in fact done so. He relied upon Machin (1980) 71 Cr. App. R. 166.
Held, refusing leave to appeal, a person summoned as a witness who deliberately absents himself in return for payment does an act
that tends to pervert the course of justice. The headnote of Machin (supra) did not accurately reflect the judgment delivered by Eveleigh L. J., in particular at p.170: “The gist of the offence
is conduct which may lead and is intended to lead a miscarriage of justice whether or not a miscarriage actually occurs”. The
prosecution had clearly established acts that tended to pervert the course of justice and an intention in the applicant to do so.
In a commentary to this case, it has been stated as follows:
Commentary. It is common law misdemeanour to do an act which has tendency and is intended to obstruct the course of justice. Its limits are uncertain and, like other common law misdemeanours, e.g. affray and keeping a disorderly house, its range has been extended in recent years by decisions of the courts. The present case continues that process.
The argument that the prosecution must show that justice actually been perverted certainly seems to have been a hopeless one. The charge has indeed generally taken the form of an inchoate-inciting, conspiring or attempting to pervert justice- but it has been decided that these acts constitute the substantive offence: Rowell (1977) 65 Cr. App. R. 174. 180.
While it is undoubtedly sufficient to prove that the defendant has done an act with a tendency to pervert the course of justice (with the intention of doing so) it is not so clear that the act in the present case had a sufficient tendency to so, in the light of earlier decisions, particularly Murray (1982) 2 All E. R. 225. There Lord Lane C.J., delivering the judgment of the Court of Appeal said:
“In view of this Court there must be evidence that the man has done enough for there to be a risk without further action by him, that injustice will result. In other words there must be a possibility that what he has done ‘without more’ might lead to injustice”.
Attorney-General v Butterworth (1963) Q.B. 696 was a case involving, inter alia, witness influencing. The court held that it was more a contempt of court than anything else as being an interference with the proper administration of justice.
This is a criminal case. The general rule is that the prosecution bear the legal burden of proving all the elements of the offence necessary to establish guilt.
In Woolmington v DPP [1935] A.C. 462 Viscount Sankey LC said:
“But while the prosecutor must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence.
Throughout the web of the English criminal law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception ... No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained ......”
The above view expressed in Woolmington was followed in Mancini v DPP (1942) AC 1.
In R v Wilson (1986) 22 A. Crim R 130 at page 133 King C J said that no attempt should be made to explain or define reasonable doubt, but if need be, one should define a reasonable doubt being one which a reasonable person is prepared to entertain. Cox J in R v Pahuja (1987) 30 A. Crim R 118 at page 134 said that it should not be an unreal or fanciful doubt but one to which reasonable men would give weight. His Honour then said:-
“Determining whether there is a reasonable doubt on the evidence required the making of a judgment and, perhaps even the discarding of perceived unreasonable doubts, even if it is done unconsciously ...... At any rate a person can have a doubt in every sense of the word, but then on further reflection and evaluation discard it as unreasonable, so that it will no longer have any influence on his decision”.
I have considered all the facts and evidence before this Court in great detail. There are too many inconsistent statements made by PW1. She has answered many questions by saying “cannot recall”. She has also remained silent on many occasions.
In respect of the first accused, the prosecutor must prove that he obstructed the course of justice by directing PW1 against her will to make a statutory declaration.
In respect of the second accused it should be proved that he obstructed the cause of justice by witnessing a statutory declaration although he was informed that its contents were untrue.
During cross-examination PW1 had told the court that the first accused did not talk to her before the declaration of 22/11/95 was witnessed. Furthermore, there is no evidence before this court that the first accused prevented or hindered or dissuaded PW1 from giving evidence. There is also no evidence of any force being used on PW1 which could mean that she signed it against her will.
The learned prosecutor in one of her submissions stated that the first accused was keen to have exhibit 1 signed and therefore it could be inferred that he wanted to use it to get the charge against him dropped. This is a criminal case and in my view such an interference would be dangerous and is clearly contrary to established principles.
In respect of exhibit 1, she said that she wrote in her own handwriting. But she gave different reasons for writing exhibit 1. She said that she had already written one on 6/11/95 and did not want to be told to write another one.
PW1 during cross-examination by Mr Bulewa unequivocally agreed that before she met the second accused in Raiwaqa, she had already written exhibit 1 on 22/11/95. She further agreed that the second accused simply went there to witness whatever she had already written. If this is so, then where is the obstruction of the course of justice by endeavouring to prevent PW1 from giving evidence in court later? In my considered opinion there isn’t.
On facts and evidence before this court, I accept that when the second accused witnessed the signature, he was simply carrying out a legal obligation as a Commissioner for Oaths and nothing more. During his interview (exhibit 5) the second accused was asked whether he realized he was interfering with a prosecution witness (PW1) when he witnessed the declaration of 22/11/95. He replied that he did not and further stated that he had a duty to sign as a witness. He was also asked if as a solicitor it was necessary for him to find out why the declaration in issue was made. He replied that it was not his duty to do so. When he was finally asked whether he had anything else to say, he replied:
“I signed the declaration as a Commissioner for Oaths and had been requested to do so and I did this in good faith”.
I find that as a result of cross-examination the evidence of PW1 and PW2 has been so discredited that it would be unsafe to rely on it. I also find that the evidence is of a tenuous character especially of PW1 as it is not only vague in many important instances but also inconsistent with other evidence.
In respect of the allegation, Mr Bulewa had submitted that before interviewing anyone, allegation must be put in full. However, Ms Rice had submitted that this was not so and that there was no requirement in law to spell out the exact offence prior to giving caution. To accept the proposition put forward by the learned prosecutor would not be in the best interest of justice. In any event, the allegation put to both accused was not unequivocal. PW2 during cross-examination by Mr Raza agreed that “there is no offence at all in the allegation as put to the first accused in Exhibit 4.” Then he also agreed that it means that the effect of all questions and answers that follow are null and void.
When questioned by Mr Bulewa, PW2 agreed that there was no offence disclosed in the allegation as put to the second accused. He further agreed with Mr Bulewa that questions and answers which followed would be invalid since the caution was invalid.
I find that the prosecution has failed to prove its case against both accused beyond reasonable doubt.
Therefore, I uphold the submission of no case to answer by, both, Mr Bulewa and Mr Raza in respect of both accused.
Consequently, I acquit both the accused of the charge of obstructing the course of justice.
Three other matters remain which I have to deal with. Both Mr Raza and Mr Bulewa have asked for specific rulings on these matters. They have a direct bearing on the matter before this court and must therefore be dealt with in the interest of justice. The three matters relate to:
a) an allegation by defence counsel Mr Bulewa that during the investigation process of this case, the DPP got directly involved in it and therefore she had abused her office. As such, he said that she should be made to answer for that.
b) The conduct of the learned Prosecutor, Ms Elizabeth Rice, in allegedly misleading the Court at the commencement of the hearing and thereby committing the offence of contempt of Court.
c) The alleged contempt of court by two Fiji Times newspaper journalists. The allegation relates to a news item published in the Fiji Times dated 13th September 1996 where on page 4 an article appeared titled “Naqiolevu Changes Magistrate”.
Before I deal with deal with these three matters, I wish to point out that I am aware of my duty as the presiding judicial officer.
This means that I have to apply law to the facts as found by the Court in light of facts and evidence before the court. The raison d’etre is to adjudicate fairly without showing or appearing to show favour or ill-will to any person. I appreciate that we as judicial officers
are tied to the adversary system of litigation where opposing parties contest against each other for a result favourable to themselves
and in such system the judicial tribunal acts as a neutral umpire only. I always keep in mind that it is very important to keep within
established procedural and evidentiary rules. This is done to safeguard the court from appearing eccentric, partial or biased. I
strongly believe in the often quoted maxim “Justice must not only be done but must also be seen to be done”. With these brief comments, I believe that in commenting on these three additional matters I will be keeping strictly within the proper
bounds of my judicial function.
I shall now proceed to deal with these three matters one at a time.
A. Allegation of abuse of Office against the Director of Public Prosecutions.
Mr Bulewa had submitted that the DPP has abused her office by getting directly involved with the investigation against the two accused when in fact the investigating officer should have been answerable to his superior officer or to the Commissioner of Police instead of directly to DPP. The investigating officer has given evidence that he was responsible in reporting regularly to the DPP directly. In Mr Bulewa’s view, this is wrong and unconstitutional. Mr Bulewa has asked for a firm ruling in this matter.
PW2 told the court that DPP told him who to take statements from and it was DPP who told him to take another statement from PW1.
Whether or not the learned DPP abused her office is not a matter for me to decide in this case. It may be advisable for Mr Bulewa to raise his concerns with appropriate authorities.
B. Allegation against Prosecutor Ms Rice of misleading the court.
When the court convened on 11/9/96 to proceed with the hearing of the charges against the two accused, Ms Rice informed the court that she had a preliminary point to raise. She then told the court:
“There was an ex-parte application by Mr Raza before Chief Magistrate to have this matter shifted from Court 3 to Court 2”.
Court 3 is Dr Ilangasinghe’s and Court 2 is usally presided over by me.
When questioned by this Court how she knows that, she replied:
“I heard it from court clerk that the application was made by Mr Raza before Chief Magistrate.........This is highly irregular for Chief Magistrate to do”.
When I invited for comments from Mr Raza, he replied:
“This is a blatant lie. I never made any application before Chief Magistrate or anyone. Such baseless claim are usually made by DPP’s office. I need an apology. I never applied for transfer of any case.......It is not only a lie against me but an indictment on the presiding Magistrate............”
When Ms Rice was asked by the court on what basis she stated to the court that an ex-parte application was made before Chief Magistrate by Mr Raza, she replied:
“A clerk told me. I relied on her”.
Ms Rice at the same time made an application to have the case stood down to check “the legal position” of the matter. When asked by the court what legal position she was talking about, she could not explain and all she said that it related to the “irregular transfer”. It was put to Ms Rice by the court as to why she did not discuss with the Chief Magistrate on this matter if she was so concerned. She replied that she did not as she was told by a clerk about it. She also admitted that she did not even try to see the Chief Magistrate. When asked by Mr Raza to apologise for making a false wrong statement in court without first checking about him or the Chief Magistrate, she replied that she will “leave it at that”. Mr Raza was not amused by this and demanded an apology. The court then reserved its ruling on the apology issue and the question of possible contempt of court by Ms Rice till later in the proceeding.
However, before proceeding with the case, I stated, inter alia, that:
1)
2) In respect of the assignment of cases to various magistrates, it is the sole duty of the Chief Magistrate to do that. He is the Chief Magistrate and it is his duty and prerogative to do so.
3) Resident Magistrates do not pick and choose cases. They are assigned cases and they preside over them without question unless when there is any special reason otherwise. The Chief Magistrate...........directs which magistrate hears which case.
4) ..................
5) Importantly, Ms Rice has made a serious allegation against Mr Raza which he has denied in very strong terms. Not only that, she has questioned the Chief Magistrate’s prerogative to assign duties and cases to various magistrates. In assigning the case as he did, he was performing his administrative duty. In my view, one should not and ought not be allowed to question his reasons for so doing.
6) The basis on which Ms Rice made the application was merely because a clerk allegedly told her about Mr Raza’s ex-parte application before Chief Magistrate. In my view, this allegation in itself is highly irregular. She could, and should have, checked with the Chief Magistrate. She no doubt had ample time to do so. The Chief Magistrate would have cleared the air so easily.”
I also commented, before swearing in the first prosecution witness, as follows:
“Before proceeding further, I wish to clarify one thing. It was true that this matter was set for hearing before Dr Ilangasinghe. However, at 11am, he was still busy lecturing police prosecutors and was not available to commence hearing at that time. All parties were ready. The delay was causing anxiety in Court 3.
As usual, Chief Magistrate reviewed the progress of hearings and the availability of magistrates to assist others if required at 11am (being morning tea break). As a result, because I was available to begin and new case and because Dr was still not available, the delay was becoming unreasonable so the Chief Magistrate instructed me to take over this case in Court No. 2. From 9.15am to 11am is already unreasonable delay.”
In fact, my enquiry has revealed that no such application was entertained by the Chief Magistrate at any time. The learned Chief Magistrate has confirmed that no such application was ever made to him. Also, the court clerk who was supposed to have told Ms Rice about the alleged transfer has confirmed in writing that she never told Ms Rice about any ex-parte application by Mr Raza.
In my view, the statement to the court by Ms Rice to the effect that Mr Raza made an ex-parte application before the Chief Magistrate to have the matter shifted from court 3 to court 2 was not only misleading but a blatant lie made without reasonable justification. In my view, Ms Rice as an officer of the court ought to have been more careful in deciding who to rely on and what exactly to say in court. For a prosecutor of Ms Rice’s standing to simply rely on words of a clerk and then to make an allegation in court as if it is a fact against the Chief Magistrate and senior counsel Mr Raza is nothing less than bizarre. It seems to me that no reasonable care or precaution was taken by Ms Rice to avoid making the statement which she did without first ensuring that she was absolutely sure of what she was saying in court.
In spite of my comments pertaining to the already unreasonable delay in commencing the hearing of this case by 11am and the Chief Magistrate’s subsequent decision to ask me to preside over this matter as the parties were ready, Ms Rice remained adamant to get the matter stood down to check the “legal position” of the “irregular transfer.” Of course, she could not explain what the “legal position” was and whether in reality there was any “irregular transfer”. But the manner in which she put to the court, she was very forceful in her submission that in fact there was an illegal transfer which she wanted to look into.
In my opinion, the learned prosecutor has committed a serious offence ie. wrong done to the public by weakening the authority and influence of a tribunal which exists for the public good alone. In my view, by her statement Ms Rice has imputed improper motives to those taking part and also which is calculated to bring a court or judge into contempt or lower his authority. I strongly believe that the statement by Ms Rice by imputing improper motives on the part of the Chief Magistrate in entertaining an ex-parte application by Mr Raza is nothing less than contempt of court. This I feel must not be left unpunished or at least uncensored.
Section 136(h) of Penal Code provides that any person who:
The jurisdiction for courts to deal with Contempt of Court is provided in para 28-24 at page 2973 of Archibald 1992 Vol 2.
“Superior Courts of record have jurisdiction to deal summarily with contempt both in the face of the court and out of court:-
Inferior Courts of record have jurisdiction to deal summarily only with Contempt in the face of the court:-- R v. Brompton County Court Judge [1893] QB. 195.
For conduct amounting to contempt. See Halsburys Law of England Fourth Edition Vol 9.
Kepa J in Mosese Naisaroi v State (Criminal Appeal 53/93 of Suva High Court) endorsed the above paragraph dealing with jurisdiction of courts pertaining to contempt of court and about contempt in the face of court.
Lord Denning, in Balogh v St. Alban’s Crown Court [1975] Q.B. 73 in respect of contempt of court in the face of court said:
“But I find nothing to tell us what is meant by “committed in the face of the court.” It has never been defined. Its meaning is, I think, to be ascertained from the practice of the judges over the centuries. It was never confined to conduct which a judge saw with his own eyes. It covered all contempt for which a judge of his own motion could punish a man on the spot. So “contempt in the face of the court” is the same thing as “contempt which the court can punish of its own motion.” It really means “contempt in the cognizance of the court.”
Gathering together the experience of the past, then, whatever expression is used, a judge of one of the superior courts or a judge of Assize could always punish summarily of his own motion for contempt of court wherever there was a gross interference with the court of justice in a case that was being tried, or about to be tried, or just over – no matter whether the judge saw it with his own eyes or it was reported to him by the officers of the court, or by others – whenever it was urgent and imperative to act at once.”
I find that there is a prima facie case against the learned prosecutor for the offence of contempt of court. I shall in due course require Ms Rice to show cause why she should not be dealt with for contempt of Court.
C. The alleged contempt of court by two Fiji Times journalists.
In the Fiji Times of 13 September 1996 on page 4 an article was published titled “Naqiolevu Changes Magistrate”. The two reporters who wrote the article were Yunus Rashid and Dharmend Prasad. It reads:
“The case of a State solicitor charged with obstructing the cause of justice was place before Syed Shah yesterday when a defence lawyer objected to it being heard before Magistrate Doctor Jindasa Ilangasinghe.
The direction for the change came from the Chief Magistrate Sekove Naqiolevu.
The move was seen by Government and private lawyers as a precedent which would allow lawyers to choose magistrates for their cases.
State Prosecutor Elizabeth Rice’s application for an adjournment to find out the reason for the change was denied by Mr Shah who proceeded to hear the trial.”
The statement that Ms Rice’s “application for an adjournment to find out the reason for the change was denied by Mr Shah”. The court commented that this is false. There was never any such application before the court. Then the court further commented:
“Clearly the respect is erroneous. In my view, the real offence committed by reporters when reporting in such a manner is the wrong done to the public by weakening the authority and influence of a tribunal which exists for public good alone. ......While it is open to all to criticize the administration the administration of justice fairly and temperately, criticism which is actuated by malice or which imputes improper motives to those taking part or which is calculated to bring a court or judge into contempt or lower his authority, cannot shelter behind the bulwark (defensive wall) of free speech......in my opinion the article concerned has misled the public at least to some extent. Not only that, the article as a whole has imputed improper motive to the chief magistrate and to me as well. This obviously seems to lower the authority of the chief magistrate and the court. ......Section 136(h) of the Penal Code provides for a penalty of 3 months imprisonment in situations where while a judicial proceeding is proceeding, a person makes use of speech or writing misrepresenting the proceeding or capable of prejudicing any person in favour of or against any party to the proceeding or calculated to lower the authority of any person before whom such proceeding is being had or taken. ......Such blatant misreporting about me is a lie of the highest degree. It was clearly calculated to lower my authority as the presiding magistrate”.
I questioned Ms Rice whether I had made any ruling as reported in the newspaper in issue. She replied: “Not really. It is a question of semantics”. Then I commented:
“I am not interested in semantics. The fact is that there was no such application before me and I never made any ruling as reported. ...... You made another application which I ruled on. It related to you checking the ‘legal position’. You were not able to tell me what the ‘legal position’ was that you wanted to check. ......I therefore propose to deal with the contempt ......”
Mr Raza commented that he was appalled and disgusted at this kind of reporting as this is an indictment on the judiciary. He said he was casting his observation in strongest term possible. He further stated that there was no such application before the court. He concurred with the observation of the court that those responsible should be cited for contempt of court as the article suggested sinister motive.
Mr Bulewa then said that he was very concerned at the way the report was made. He stated that it is wrong and clearly in contempt of court. He said that we should not put up with this sort of reporting and those responsible should be taken to task by doing a proper investigation and bringing to justice those responsible.
Perhaps one of the most important points to note is that reporter Yunus Rashid was not present in the court on a single day of trial. Yet he reported the proceedings. But Dharmend Prasad has been in Court on most days.
In the house of Lords case of Attorney-General v. Times Newspapers Limited [1974] A.C. 273, it was held that it was contempt of court to publish material which prejudged the issue of pending litigation or was likely to cause public prejudgment.
In my view, there ought to be absolute prohibition of interference with a fair trial. Jordan C.J. in Ex-parte Bread Manufacturers Ltd [1937] NSWStRp 22; [1973] 37 S.R. (N.S.W.) 242 at 249 said:
“It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a court of justice from having his case tried free from all matters of prejudice”.
In my opinion, the journalists in question published a statement of most misleading character aimed at bringing the court into contempt and to lower its authority.
In Times Newspaper Ltd (supra), the House of Lords also held that the Attorney-General also has a right to bring before the court any matter which he thinks may amount to contempt and which he considers should be in the public interest be brought before the court.
My enquiry has revealed that the change in magistrate was made for a reason other than that reported in paragraph one. The Chief Magistrate confirmed that in this case, no defence lawyer objected to it being heard before Dr Ilangasinghe on the morning of the trial. The sub-heading “Government, private lawyers worried move might be a precedent” in the context of the article, in my opinion, clearly was calculated to impute improper motives to those taking part in it as well as to bring the court into disrepute.
In my opinion, the instant case is akin to contempt committed in the face of the court in the literal sense. The court found itself frustrated on the morning of the resumed trial (13/9/96) by the sensational publication which, in my view, questioned chances of a fair trial. Furthermore, the court saw and read it which was displayed on page 4 prominently. There is ample authority both in the United Kingdom and in Fiji to the effect that a court can act on its own in situations such as the present one. See for instance, Lord Denning’s comments in Balogh (supra).
Jesuratnam J has same view in Criminal Case No. 1 of 1991 in which summons were issued to the editors of Fiji Times and Daily Post newspapers to show cause why they should not be dealt with for contempt of court. Jesuratnam J on page 5 of his judgment said:
“A clear distinction has consistently been made in English common law between publication of matter calculated to prejudice the fair trial of a pending case on the one hand and the other forms of contempt on the other. Strict-liability attached to the former while mens rea as such is required in the latter.
It has been established in England by a long line of cases beginning from 1972 that in the former class of cases all that the complainant had to prove was that the respondent had published matter which in fact tended to prejudice pending proceedings. It was irrelevant that the respondent did not know that proceedings were pending or that he failed to appreciate the proposed nature of his publication.
......The printed word leaves a lasting impression on the human mind which is difficult to obliterate even with the strongest of warnings by the Judge.”
If the two journalists in question had taken care in writing the article and to do it with prudence and caution, such incorrect reporting could have been avoided. As was stated in the case of St. James Evening Post (1742) 2 ALK 469. Furthermore, in Rex v Dolan (1907) 2 I.R. 960, Palles C.B. said:
“Actual intention to prejudice is immaterial. I wholly deny that the law of this court has been that absence of an actual intention to prejudice is to excuse the party from being adjudged guilty of contempt of court, if the court arrives at the conclusion which I have arrived at, that there is a real danger that it will affect the trial: or that absence of intention is to excuse the party form punishment. Such a circumstance as that ought, no doubt, to be taken into consideration in considering the nature of the punishment to be awarded, as, for instance, whether it should be imprisonment.”
Chief Justice Lord Goddard in R v Odhams Press Limited and Others Ex-Parte Attorney General [1975] 1 Q.B. 73 said that mens rea is not material except as to penalty. In other words, it is strict liability. For sake of completeness, I refer to Section 1 of the Contempt of Court Act 1981 in England which defines the doctrine of strict liability as “the rule of law whereby conduct may be treated as contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.”
The present has no doubted generated a lot of public interest especially because a state solicitor has been charged with a very serious offence. As such, anyone who reports the first day’s proceedings in such a case would surely know that the proceedings must be correctly reported and any incorrect reporting may create a substantial risk that the course of justice could be seriously impeded or prejudiced.
In my view, if the two reporters concerned had in fact taken down the proceedings prudently in the courtroom themselves, they ought to have been thrown on their guard due to the very nature of the proceedings. If they wanted to report the proceedings, they should have been alerted to make further enquiries such as from the Chief Magistrate or even defence counsel. As such, the true position may have been revealed. Unfortunately, this was not so.
Be that as it may, the conduct of the two reporters in reporting as they did is clearly in breach of Section 136(h) of the Penal Code. The publication unequivocally was while the judicial proceeding was pending and the first day’s proceeding was misrepresented. As such, the misreporting was capable of prejudicing persons in favour or even against parties to the proceeding. Furthermore, it was calculated to lower the court’s authority. I am of the firm belief that such distorted reporting undermines confidence of public in judiciary.
In the light of the above I find that the publication was calculated to prejudice the course of justice and therefore there is a prima facie case against the two Fiji Times journalists Yunus Rashid and Dharmend Prasad for contempt of court. They will shortly be summoned to show cause why they should not be dealt with for contempt of court. In addition, some other person from Fiji Times such as the editor may also be summoned to show cause.
So, as a summary, the orders of the court are as follows:
1. The first accused Waisake Navunigasau and the second accused Amani Rokotinaviti are being acquitted of the offence of obstructing the court of justice contrary to Section 131(b) of the Penal Code.
2. There is prima facie evidence of the offence of contempt of court against the learned prosecutor Ms E. Rice.
3. There is prima facie evidence of the offence of contempt of court by two Fiji Times journalists Yunus Rashid and Dharmend Prasad.
Ms E. Rice, Yunus Rashid and Dharmend Prasad will be summoned on 13 November 1996 to cause why they should not be dealt with for contempt of court.
Syed Mukhtar Shah
Resident Magistrate
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