R v Ramtamankal [1941] FijiLawRp 4; [1875-1946] 3 FLR 302 (2 December 1941)

[1875-1946] 3 FLR 302

SUPREME COURT OF FIJI

Criminal Jurisdiction

R

v

RAMTAMANKAL

Corrie, C.J.

December 2, 1941

Statements of witness to police-extent of prosecution's duty to communicate contents to defence.

In the course of his address to the Court in a murder trial, Counsel for the defence commented on the fact that a statement made by a boy who was not a witness for the prosecution had not been communicated to him before the trial.

HELD –

(1) There is no impropriety in not communicating to the defence a statement from a person who is not a witness for the prosecution.

Obiter (1) It is a proper practice that, where the police take a statement from a person which appears to be clearly in favour of the defence, that statement is communicated to the defence.

(2) The only statements which the defence are entitled as a matter of law, to see are statements made by persons who are called as witnesses at the preliminary inquiry or, not having been so called, are called as witnesses at the trial.

[EDITORIAL NOTE -The second obiter dictum quoted above is clearly meant to apply only to witnesses called by the prosecution. There is singular lack of authority on this vexed question. See however Mahadeo v R [1936] 2 AER 813; and R v Bryant and Or [1946] 31 Cr Ap 146; R v Clarke 22 Cr Ap.58]

PROSECUTION for murder The only points of present interest are dealt with in the opening portions of the summing up.

The Attorney-General, E. E. Jenkins for the Crown.

H. M. Scott, K.C. for the prisoneR

CORRIE, C. J.:-Before I deal with the facts of this case I must say a word about the statement which was taken by the Police from the boy Ramsahai, a brother of the accused. It was suggested rather strongly by Sir Henry Scott that there was some impropriety in the fact that that statement had not been communicated to him before the trial. I can see no such impropriety.

The position as regards statements taken by the Police is this. The only statements which the defence are entitled, as a matter of law, to see are statements made by persons who either are called as witnesses at the preliminary inquiry or, not having been so called, are called as witnesses at the trial.

There is a practice, and it is a proper practice, that where the Police take a statement from a person which appears to be clearly in favour of the accused, that statement is communicated to the defence, or at any rate they are informed that such a statement has been made.

The statement which the boy Ramsahai made to the Police, however, was not a case of that nature. He said he finished work at about 5 p.m. and reached home at about 6 p.m. He then went on to say that he went to the creek to have a bath. "After about fifteen minutes I returned home. I then went to the kitchen and had my meal, that is at 6.15 p.m."

According to the evidence of Inspector Holland it was 6.25 p.m. when he arrived on the scene of the assault. That is to say, the boy's evidence puts him at his own home, close to the scene of the assault, at the time when the assault is alleged in evidence to have taken place. Clearly therefore there is no such inconsistency between the case for the prosecution and the boy's evidence as would in any way make it incumbent upon the prosecution to communicate that statement to the defence. There was nothing to prevent the defence from going as no doubt they did, and obtaining a statement from the boy; he was not a witness whom there was any difficulty about finding; he was the accused's brother, living with his mother close to the scene of the assault; and I can see no reason whatever why that statement should have been communicated to the defence.