Waqa v Reginam [1977] FJSC 153; Criminal Appeal 10 of 1977 (9 March 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No.10 of 1977

BETWEEN

KALIVATI WAQA
Appellant

AND

REGINAM
Respondent

Appellant in person
Mr. D. Williams for the Respondent

JUDGMENT

This appellant was charged with larceny from the person contrary to section 303 of the Penal Code, the particulars of offence being that on 8th May 1975 he stole a wrist match from the person of Ram Brij Singh. He pleaded not guilty and after trial was convicted and sentenced to nine months' imprisonment. He appeals on several grounds, none of which need to be considered in the light of what I am about to say. Counsel for the Director of Public Prosecutions does not support the conviction for three reasons. First he says that the appellant was not asked whether he accepted the evidence on the voir dire as part of the prosecution case, secondly the magistrate appears to have admitted all the evidence in the trial within a trial as evidence in the trial proper and thirdly the appellant was given no notice of his right to recall any witnesses after the voir dire.

As to the first point I am not satisfied that the appellant needed to be asked. The practice direction issued by Nimmo C.J. on 29th June 1972 contains inter alia the following:

"If at the conclusion of a trial within a trial a magistrate rules that the disputed evidence is admissible, the prosecution should simply state that it formally presents in the trial proper the prosecution evidence which has already been led in the trial within the trial, whereupon the magistrate may take cognisance of that evidence in the trial proper. The defence should then be given the opportunity, if it so requires, to have recalled for further cross-examination in the trial proper all or any of the prosecution witnesses who gave evidence in the trial within the trial."

The second reason has reference to the course taken by the trial within a trial. The police wished to adduce evidence of a confession which the accused challenged because he said he was forced to make it.

The Magistrate decided that he should conduct a trial within a trial and the prosecution called two witnesses after which the accused gave evidence and was cross-examined at some length. The Magistrate delivered his ruling admitting the statement and then the prosecutor made the following request: "I ask that evidence in trial within a trial be adopted in the main trial." The Court recorded "Yes it will be." The Fiji Court of Appeal in Doulat Khan v R. No. 3 of 1976 said at p. 8 of the judgment concerning the evidence in a trial within as trial.

"After the voir dire the prosecution requested that evidence then already given should form Part of the trial. Probably the learned Magistrate treated this as meaning all the evidence including that called by the defence. At this point such evidence cannot form part of the case."

A precisely similar request was made here and I cannot see why the prosecutor should be assumed to be referring only to the prosecution evidence. It is true, that there is nothing in the Magistrate's judgment to show that he regarded the defendant's evidence in the voir dire, but the possibility is there and I think that learned counsel for the prosecution rightly conceded that the conviction could not stand. The third respect in which counsel for the prosecution considered that he was unable to support the conviction is that there is no evidence on the record to show that the appellant was informed, after the conclusion of the trial within a trial, of his right to recall the witnesses. This arises from a further passage in the judgment in Daulat Khan's case (cit supra) where, after stating that the Court could see no objection to a Magistrate's Court following Sir John Nimmo's practice direction of 29th June, 1972 if the prosecution and counsel for the defence agree, the judgment goes on "any witness whose evidence is so admitted, must be available for further cross-examination." I would think that although in a defended case, it can be safely left to counsel to tell the court if he wishes to exercise this right, it is desirable that the Court should explain the right to an undefended person and note that it has been so explained. The appeal is therefore allowed and the conviction and sentence are set aside.

Although in the case of procedural defects it is sometimes appropriate to order a new trial, I think that in this case an order of acquittal should be entered. The charge was first before the Court on 12th May 1975, and the accused attended on nine occasions after that until 9th trial February, 1976, when a bench warrant was issued under which he was brought to Court on 4th May and remained in custody thereafter until the trial began on 20th July 1976. It was continued at various times until it was completed by delivery of judgement on 1st November. I should perhaps add that I am informed that the appellant was for most of this period in prison on another charge, although this does not appear on the copy of this record made available to the Court. He was given leave to appeal out of time on 15th December 1976. The sentence which he was then serving ended on 11th January 1977 and he then began to serve the sentence imposed in respect of this conviction.

(Sgd.) K.A. Stuart
JUDGE

LAUTOKA,
9th March, 1977.