State v Tamani [2011] FJMC 85; HAC258.2010 (15 July 2011)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No HAC: - 258/2010

STATE

V

LOMANI TAMANI
SUNIA RORAQIO

For Prosecution : - Ms. Naidu
1st and 2nd Accused persons : - In person

RULING

1. The 1st and the 2nd accused persons are charged with of one count of "Aggravated Robbery" contrary to section 311 (1) of the Crime Decree No 44 of 2009 and one count of "Use of motor vehicle without owner's consent" contrary to section 100 (1) and 114 of the Land Transport Act No 35 of 1998. Since both accused persons pleaded not guilty for their charges the matter was set down for the hearing.
   
2. At the commencement of the hearing the learned counsel for the prosecution informed the court that the prosecution would be relying on photocopies of the original records of the caution interviews of both accused persons as they lost the originals of those records of the caution interviews. Both accused persons objected to the use of the photocopies of the caution interviews as evidence against them which made the court to hold the voir dire hearing and invited both parties to proceed with the hearing on the preliminary issue of admissibility of the photocopies of the caution interview notes of the 1st and the 2nd accused persons as evidence to be used against them in the hearing.
   
3. In this preliminary hearing prosecution called three witnesses. The two accused persons did not give evidence or did not call any witnesses for the defence. Upon conclusion of the preliminary hearing I invited both learned counsel for the prosecution and the two accused persons to submit their submissions in writing which they filed on time.
   
4. Upon considering the evidence presented by the prosecution and the careful perusal of the submissions of the prosecution and the defence, I now proceed to pronounce my ruling on this preliminary issue.
   
5. The first prosecution witness DC George Lanyon is the investigating officer in this case. In his evidence he stated that apart from being the investigating officer he conducted the caution interview of the 1st accused person and was the witnessing officer for the 2nd accused person's caution interview. The second prosecution witness DC Ilikimi is the interviewing officer of the caution interview of the second accused person and witnessing officer for the first accused person's caution interview. Third prosecution witness WPC Asenaca is the present crime writer at the Lami Police Station.
   
6. The general rule of primary evidence or best evidence rule in respect of documentary evidence has now being changed to more liberal approach. Ackner LJ held in Kajala v Noble (1982) 75 Cr.App R 149) as cited by Winter J in State v Isimeli Dradroveivali ( HAC 0004 of 2002), " the old rule, that a party must produce the best evidence that the nature of the case will allow and that any less good evidence is to be excluded has gone by the board long ago. The only remaining instance of it is that, if an original movement is available in one's hands, one must produce it, that one cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight and not to admissibility".
   
7. "Cross on Evidence", 7th Australian Edition, Page 1304, stated "there is no reasons why the copy of a copy should not be received in evidence provided the witness producing it, or some other witness makes it clear that the copy produced is a true copy of the first copy and that copy was in its return, a true copy of the original".
   
8. The laws pertaining to the admissibility of copies of original documents as evidence was succinctly discussed in R v Lobendahn, (supra) where Goudie J held that ' the law in regard to the admissibility in evidence of copies of documents, the originals of which are said to have been stolen or lost may in my view, be outline as follows:-
   
   1. It must be established that the original itself, in fact formerly existed,
      
   2. That such original itself would have been legally admissible in evidence,
      
   3. There must be clear and reliable evidence to establish that the copy which the party wishes to tender as secondary evidence is a true copy and faithful reproduction in all respects of the original document,
      
   4. The original must be proved to have been lost or destroyed and the court must have evidence before it from which it can be satisfied that the original no longer inexistence or that it could not, by any reasonable amount of effort be found,
      
   5. If a document is said to have been lost or possibly destroyed it must be established that "due and diligent search" has been made for the missing document before a copy can be tendered,
      
   6. It must be shown, if necessary, by a proper chain of evidence, what happened to the original from the time the original was made out or first known to be in existence until it was lost. Similarly, it must be established, when, where, and how the copy was made and how it came into the hands of the person seeking to tender it in evidence,
      
   7. All of these matters must be established to the satisfaction of the trial court "beyond reasonable doubt".
      
9. In line with the above judicial precedence, the main issues to be determined in this ruling as the learned counsel for the prosecution correctly stated in her submission are;
   
   1. The existence of the original caution interview,
      
   2. The photocopy is a true and faithful reproduction of the original,
      
   3. The original caution interview is lost and subsequent due and diligent search was carried out,
      
10. Bearing in mind the laws and judicial precedents pertaining to the issue of admissibility of copies of original documents I now turn to carefully analyze the evidence presented before me with the laws pertain to this issue.
    
11. The 1st and the 2nd prosecution witnesses were the authors of the original notes of the caution interviews of the 1st and 2nd accused respectively. Both of them testified in their evidence that they conducted the caution interviews of these two accused persons and recorded everything transpired in the caution interviews. Moreover DC George Lanyon was the witnessing officer for the caution interview of the 2nd accused and DC Ilikimi was the witnessing officer of the caution interview of the 1st accused. Both of these witnesses gave evidence in detail how these caution interviews were conducted. Both of them testified that they authored the original caution interviews of these two accused persons and testified the details of them from their personal recollections.
    
12. Moreover, both witnesses stated that immediately after the record of these two caution interviews they made two copies from the respective notes of the caution interview. DC George stated that he gave the original copy of the 1st accused person's caution interview to the then Crime Writer of the Lami Police station together with other original exhibits of this matter. One photocopy of the caution interview made by DC George has given to the 1st accused as part of his disclosures and other photocopy is tendered as MIF 1 in this hearing. DC Ilikimi also made two photocopies of the caution interview of the 2nd accused and gave it to DC George. The both witnesses identified and compared the photocopies which they made immediately after conducting the caution interviews.
    
13. The evidence of these two witnesses established that they conducted the two caution interviews of these two accused persons and made the notes of them, subsequently, they made photocopies of the notes of the caution interviews. Accordingly the prosecution satisfied that the originals of the two caution interviews were formally existed and would have been legally admissible in evidence for the prosecution. Moreover, they established that the photocopies were true reproduction of the original documents.
    
14. At this point, I turn my attention to the 2nd accused person's contention that he did not sign his caution interview. The scope of this hearing is not extended to determine the manner of which the caution interview was conducted and recorded and these issues could be dealt at the voir dire hearing, not in this preliminary hearing.
    
15. I am of the view, that the prosecution witnesses satisfied the required chain of evidence for what happened to the original from the time the original was made out until it was lost. The third prosecution witness WPC Asenaca testified that according to the exhibit registry these original exhibits were received in 2010 but not brought forward for the year 2011 because they were not available in the exhibit room at that time. All three prosecution witnesses testified that they carried our several due and diligent searches in the exhibit room and in the Lami Police station but obtained negative results.
    
16. In conclusion I am of the view that the prosecution has successfully established
    
    1. The two original caution interviews of these two accused persons were formally existed,
       
    2. The two photocopies tendered by the prosecution are true and faithful reproduction of the original documents,
       
    3. The two original records of the caution interview were lost and subsequent due and diligent search was conducted.
       
17. Having considered all the circumstances set out above, I hold the photocopies of the original notes of the caution interview of these two accused persons are admissible as evidence for the prosecution and may be led in evidence in the hearing.
    

On this 15th day of July 2011.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva