State v Nambiar [2014] FJMC 66; Criminal Case 59.2012 (17 March 2014)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA
Criminal Case No.59 OF 2012

THE STATE
PLAINTIFF

V

BERNADETTE NAMBIAR & LYNETTE KUMAR
DEFENDANTS

For State : WPC Fisher
For Accused1: Ms. Tikoisuva
For Accused2: Mr. Singh

RULING

[1]. INTRODUCTION

The Applicant 1 was charged with one count of Assault Causing Actual Bodily Harm contrary to section 275 of the Crimes Decree No. 44 of 2009.The particulars of the Offence states as follows;

BERNADETTE NAMBIAR and LYNETTE KUMAR, on the 28th day of November, 2011 at Suva in the Central Division, assaulted TALISHA SINGH, thereby causing her actual bodily harm.

[2]BACKGROUND

Defence makes submission to the Court for leave to recall the complainant to the stand for further cross examination by Defence the court exercise its powers under section 116 of the Criminal Procedure Decree 2009 to grant the Defendant's application for leave as the evidence to be called by Defence affects the change in its entirety and in the interest of justice should be given an opportunity to be heard.

The Defence submits that this application for leave has been prompted by fresh information recently received from a third party that the complainant's evidence was not given of own her free will.
It is submitted that in the interest of Justice the first accused wishes to have this evidence adduced in court and seek an order pursuant to section 116 of CPD and consisting rule in Browne T Dunn.The Applicant 1submits and reiterates that: first accused wishes to call evidence received recently which will affect the credibility of the complainant's evidence as adduced in court. It is further submitted that the evidence is a recent complaint in or around December 2013 where the complainant confirmed to a third party that she had never wanted to lodge a complaint against the accused and that she was forced to do so by her mother, PW2 Nicolette Singh. In order to support the same the Applicant annexedan Affidavit of Benita Kumar to whom the complaint was made.

It is also submitted that "the complaint revealed horrendous verbal and physical abuse of the complainant by PW2 which raises concerns on the safety and wellbeing of the complainant in the care of PW2 Nicolette Singh."

It is submitted by the Applicant that the evidence to be called by Defence touches on all elements of the offence and raises reasonable doubt as to the credibility of the complainant's evidence in chief.

Further applicant submits that the hearing of the above discussed evidence is crucial to the just determination of the case and is in the interest of a fair trial for both accused. The Applicant rely on Takiveikata v State [2008] FJHC 315; HAM039.2008 (12 November 2008) where Justice Bruce made the following observations concerning a fair trial: I wish to quote.

"The importance of a fair trial cannot be understated. In McKinney b R [1991] HCA 6: (1991) 171 CLR 468, the High Court of Australia described the right to a fair trial as the central thesis of the administration of justice. In Attorney General's Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 WLR 1, the House of Lords declared it is "axiomatic" "that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all".

Also the applicant seeks that in the interest of fairness to the complainant and in compliance with the rule in Browne & Dunn and defence is seeking leave of the Court to cross examine the complainant of the specific issue of the recent complaint. Further, it is submitted that should this leave be refused Defence will not be able to present all its evidence and this will not be conducive to a fair trial.

The Applicant further explains that "The evidence to be adduced touches on all elements of the offence as it puts into question truthfulness of the complain made against the defendants. This complaint forms the very basis of the charge against the Defendants and the first defendant will not be allowed to present her case in its fullest advantage if she is denied the opportunity to adduce all the evidence on her behalf.

The first applicant also inter alia rely on Rohit Ranjit Kumar v The State, Criminal Appeal AAU 16 of 2013 and also further submits that "should the court deny the First Defendant's application she will be prevented by the rule in Browne & Dunn (1863) 6 R 67) from presenting her case to its fullest advantage and therefore preventing the just determination of the case."

The first Applicant referring to "the Affidavit of the complainant confirming at paragraph 6 that she did speak to Benita Kumar about the assault (on her) and at paragraph 8 that she did inform Benita Kumar that she wanted to withdraw her case, which leads some credibility to the affidavit of Benita Kumar.

The applicant also refers to the Child Welfare Decree 2010 (annexure B) requires that:

"Where a professional –

(a) Becomes aware or reasonably suspects during the practice of his profession, that a child has been or is being, or is likely to be harmed; and

(b) as far as he is aware, no other professional has notified the Permanent Secretary under this section about the harm or likely harm;

The professional must immediately give notice of the harm or likely harm to such child to the Permanent Secretary in writing or by facsimile, email or other reliable means of communication, where necessary the professional may, subject to section 6 give oral notice under this section." The Decree defines a Professional is defined as follows:

"A health professional as defined in the Medical and Dental Practitioner Decree 2010, a welfare officer as defined in the Juveniles Act (Cap. 56) a Police Officer as defined in the Police Act (Cap. 85)or a legal practitioner as defined in the Legal Practitioners Decree 2009."

The court wish to direct the learned counsellor to refer back to the same potion she has quoted from Child Welfare Decree 2010 and wish to state that as a "professional" she or the learned prosecutor is at liberty to take necessary action accordingly.

In responding to the applications by the Prosecution submits that the power to re-call and re-examine lies with the Court if it appears to the court that such actions are essential to the just decision of the case. Cliburn (1898) 62 JP 232, Blackstone Criminal Practice 1996 – D14.9 p1317)

The Prosecution further submits referring to the court has discretionary powers to re-call and re-examine any witness at any stage of the trial, however if a party requires leave to cross examine a witness called by the court, such leave should be given if the witness's evidence has been adverse to the party wishing to put the question. The prosecution also submits the victim does not deny talking with the deponent. Victims affidavit in response is attached after the response.

The prosecution further response to the affidavit and submission of the applicant and states that Nicolette Singh (PW2, mother of the victim) also does not deny disciplining the victim sometimes in December 2013. Her affidavit in response is also annexed with the response. Accordingly, the Prosecution submits that the Court refuse the application as; The new evidence does not touch any elements of the offending as such it shall not be essential to the just decision of the case; Furthermore, the prosecution submits that the defence has failed to show that the evidence so far adduced was adverse to the case as such the defence wish to question the complainant to clear the doubt.

[3] The Law and analysis

Section 116 (1) (c) of the Criminal Procedure Decree 2009 states:

"At any stage of trial or other proceedings under this Decree, any court may –

(c) recall and re-examine any person already examined –

And the court shall summon and examine, or recall and re-examine any such person if the evidence appears to the court to be essential to the just decision of the case."

In the light of all the laid down legal principles discussed above, now I proceed to discuss the matter before this court. The accused is been charged with one count of contrary to section 275 of the Crimes Decree No. 44 of 2009. The 2nd Applicants also submits that the evidence to be adduced touches all The elements: In this scenario, I wish to list the elements of the offence of ACABH.

In criminal proceedings it is the Prosecution (not the defence) has to prove beyond reasonable doubt when it comes to all the elements of the offence. Accordingly, for the charge of Assault Causing Actual Bodily Harm, contrary to section 275 of the Crimes Decree No. 44 of 2009, the elements of offence are:

1. The Accused
2. Assaulted
3. Causing actual bodily harm to the complainant, namely Talisha Singh.
   

As mentioned earlier, the burden of proof of the Accused's guilty beyond reasonable doubt lies with the Prosecution. (see. Woolmington vs DPP (1953). In that circumstance the Accused need only to raise sufficient evidence to cast reasonable doubt on the issue. In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

The onus was on the State to prove these elements beyond reasonable doubt. In the present case, the Complainant is not deny the discussion with Benita Kumar. In her affidavit she clearly states her position that she still wants to proceed with this matter. It is not a mere letter from the Complainant but an affidavit which was duly executed. This Affidavit may have cleared any uncertainty of the applicant about the complainant's wishes to proceed with the case.

And also the Applicant submits in her submission that her client denies opportunity to adduce evidence in its fullest advantages if she is denied the opportunity to adduce all the evidence on her behalf. The Court wish to remind the Applicant that the defence case is yet to commence. Therefore the defense may call Benita Kumar as a defence witness to adduce evidence in the court. Thus, there is no necessity to call the complainant again to the court to support potential defense witness Benita Kumar's evidence or to confim Benita Kumar's affidavit as it is not disputed by the complainant.

I also wish to highlight that the issues raised by the applicant do not contain any reference to these elements of the offence.

I wish to briefly address section 116 (1) (c) of the Criminal Procedure Decree 2009 states:

"At any stage of trial or other proceedings under this Decree, any court may –

(c) recall and re-examine any person already examined –

And the court shall summon and examine, or recall and re-examine any such person if the evidence appears to the court to be essential to the just decision of the case."

In Rohit Ranjit Kumar v The State, Criminal Appeal AAU 16 of 2013 it has elaborated that "This provision gives statutory effect to the long recognised discretionary power vested in a judge to recall, or allow the recall of, a witness at any stage of the trial prior to the conclusion and of putting such questions to them as the exigencies of justice require. It is a discretionary power that may be exercised by the court on its own motion or on an application by one of the parties."

In this matter, it is an application to recall the complainant so that she could be cross-examined concerning what was alleged to be the character and the credibility of that witness with a view to, discrediting the witness thereby rendering his or her evidence as being less reliable or less believable.

The events leading up to the making of the application according to the First accused set out in her supporting affidavit and the Defence has pointed out several matters that allegedly require further cross examination.

In this case the application was made by Counsel for the Applicant. It was made to commence with the defence case. It was an application to recall the complainant so that she could be cross-examined concerning what was discussed above.

In this scenario, I wish to draw my attention to Rohit Ranjit Kumar v The State, Criminal Appeal AAU 16 of 2013. His Lordship HON. MR JUSTICE W.D. CALANCHINI stated that;
"More significantly, section 116 (1) states that the court was required to recall the complainant if it appeared to the court that her evidence was essential to the just decision of the case. Therefore the only issue for the court was to determine whether the complainant's evidence was essential to the just decision of the case. If the court was so satisfied then it was required to recall the complainant. The learned trial judge has not considered this factor and he has based his decision on the issue of delay which first of all did not apply because of the circumstances and secondly appears to be the wrong test for determining the application. As a result it is argued that the discretion given to the learned judge has been wrongly exercised. However an appellate will not interfere with the exercise of the discretion by the learned judge unless it appears that an injustice has thereby resulted (R v McKenna (1956) 40 Cr. App. R. 65). His lordship also said;

"The purpose of allowing cross-examination of a witness as to a previous conviction is to enable the defence to attack the character and the credibility of that witness with a view to, discrediting the witness thereby rendering his or her evidence as being less reliable or less believable. No doubt this is even more an appropriate and necessary tool available to the defence when that witness is the only witness for the prosecution and where corroboration is not required by law."(Emphasis added)

[4] Conclusion:

In view of the reasons set out in above paragraphs, All what this court would look at is whether the court shall summon and examine, or recall and re-examine any such person if the evidence appears to the court to be essential to the just decision of the case.

In light of the above discussed paragraphs, I am of the view that the Applicant not qualify under sec.116 of the Criminal Procedure Decree 2009 as given reasons is not a sufficient reason to recall the witness.

As a result the application for summon and examine, or recall and re-examine the Complainant is dismissed.

28 days to appeal

Lakshika Fernando
Resident Magistrate

On this 17th day of March 2014.