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State v Baisagale [1991] FJHC 22; HAC0032.1990s (14 March 1991)

IN THE HIGH COURT OF FIJI
AT SUVA

Criminal Case No. 32 of 1990

THE STATE

v.

ROPATE BAISAGALE

RULING

The prosecution has closed its case indicating that it has called all the evidence that it seeks to rely upon in support and proof of the charges laid against the accused. It is patently obvious that the prosecution have not called all the witnesses whose statements and reports were tendered in the committal proceedings in the lower court, nor in my view is there any duty statutory or otherwise which would compel the prosecution to call all such witnesses in any subsequent trial.

Learned defence counsel now seeks to invoke the provisions of Section 290 of the Criminal Procedure Code which enables inter alia the deposition of a witness to be read as evidence where the witness "..... is proved at the trial by the oath of a creditable witness to be absent from Fiji ......." The particular witnesses concerned are a Dr. Emosi Don Taloga and Peni Waqa whose report and statement appear at pp. 41 and 17 respectively of the Magistrate Court record of the depositions.

The doctor's report details his findings of a medical examination that he conducted on the accused at 9.35 a.m. on the 26.4.90 and the statement of Peni Waqa details the occurrences and matters which he personally saw, heard and did on the night of the 25.4.90 through to the early morning hours of the 26.4.90 at 249 Waimanu Road. In short he was an eye-witness to the immediate events, the subject matter of the charges presently laid against the accused.

Learned State Counsel has no objection to the doctor's report being read in evidence and it is accordingly ordered to be read and marked as Exhibit D-1. As for the statement of Peni Waqa State Counsel objects to it being read on 2 grounds:

Firstly, that the evidence proving his absence from Fiji is insufficient; and

Secondly, that the evidence would not be subjected to cross-examination and the court and assessors would be handicapped at not being able properly to assess the witnesse's credibility.

With respect to learned State Counsel the statement of Peni Waqa forms a deposition in this case only because the prosecution saw fit to tender it in the lower court as relevant and more importantly as evidence upon which the committing court was being called upon to act. To now suggest that the witness may not be credible is to blow both "hot and cold". Needless to say the accuracy or authenticity of the statement has not been challenged at all.

At for the evidence of the witness' absence from Fiji, this is sworn to on oath by none-other than the investigating officer in the case, a senior police officer with 20 years experience in the force. To suggest as learned State Counsel has done that the sworn testimony of such a witness is a mere assertion is to do little credit to the officer concerned who it can be assumed would not make such an unfounded assertion on oath.

Needless to say the evidence of the witness's absence was first elicited from the officer in his examination-in-chief by State Counsel.

I am satisfied that the inspector is a "creditable witness" and I accept his evidence on oath and find that the witness Peni Waqa is indeed absent from Fiji as is Dr. Taloga.

As for the absence of the opportunity to cross-examine the witness I can do no better than to quote from the recent judgment of the Privy Council in Scott v. The Queen (1989) 1 A.C. 1242 where it was said of an almost identically-worded Section in a Jamaican Act:

" ..... the discretion of a judge to ensure a fair trial includes a power to exclude the admission of a deposition. It is however a power that should be exercised with restraint. The mere fact that the deponent will not be available for cross-examination is obviously an insufficient ground for excluding a deposition for that is a feature common to the admission of all depositions which must have been contemplated and accepted by the legislature when it gave statutory sanction to their admission in evidence."

and at p. 1259:

"It will of course be necessary in every case to warn the jury that they have not had the benefit of hearing the evidence of the deponent tested in cross-examination and to take that into consideration when considering how far they can safely rely on the evidence in the deposition."

and later on the same page:

"It is only when the judge decides that such directions cannot ensure a fair trial that the discretion should be exercised to exclude the deposition."

In this case having carefully considered the nature and content of the witness Peni Waqa's deposition I have come to the firm conclusion that his deposition should be read in this trial as evidence and marked Exhibit D-2.

(D.V. Fatiaki)
JUDGE

At Suva,
14th March, 1991.

HAC0032.90S