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State v Matanigasau [2003] FJHC 103; HAA0108J.2002S (20 May 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0108 OF 2002

Between:

THE STATE
Appellant

And:

KANITO MATANIGASAU
Respondent

Hearing: 13th May 2003
Judgment: 20th May 2003

Counsel: Mr P. Bulamainaivalu for State
Mr K. Bulewa for Respondent

JUDGMENT

The Respondent was acquitted, on the 8th of November 2002 in the Suva Magistrates’ Court, of the following offences:

COUNT ONE

Statement of Offence

AIDING SOLDIERS IN ACT OF MUTINY: Contrary to section 56(a) of the Penal Code, Cap 17.

Particulars of Offence

KANITO MATANIGASAU on the 2nd day of November 2000, at Suva in the Central Division, aided Sergeant Maikeli Bonafasio, a non-commissioned officer in the Fiji Military Forces and others to commit an act of mutiny at the Fiji Military Forces Headquarters.

COUNT TWO

Statement of Offence

GOING ARMED IN PUBLIC: Contrary to section 98 of the Penal Code, Cap. 17.

Particulars of Offence

KANITO MATANIGASAU between the 2nd day of November and the 6th day of November 2000, at Suva in the Central Division, was seen going armed in public place without lawful occasion in such a manner as to cause terror.

COUNT THREE

Statement of Offence

FOUND IN POSSESSION OF ARMS AND AMMUNITIONS WITHOUT LICENCE: Contrary to section 4(1) and 2(a)(i) of Arms and Ammunition Act 188.

Particulars of Offence

KANITO MATANIGASAU between the 2nd day of November 2000 and the 6th day of November 2000, at Suva in the Central Division, was found in possession with two firearms namely M16 Rifles with serial numbers 6070220 and 6068503 and 608 rounds of 5.56 ammunition without a licence.

The trial

The case was first called on the 25th of May 2001 and after much delay caused principally by the unavailability of defence counsel, the trial commenced on 28th October 2002. The evidence was that on the second of November 2000, there was a mutiny at the Queen Elizabeth Barracks in Nabua. A group of soldiers called the “CRW” took over the camp and fired at buildings and soldiers who did not support them. The accused was seen at Nabua on that day by an army officer Jotame Misivono. He was wearing blue jeans, a rag on his face, a pink shirt and was carrying an M16 rifle. He was standing inside the armoury door and the witness was told by another person that it was the accused.

There was also evidence from one Iowane Moceilovoni, a mechanic who met the Respondent on the 5th of November 2000 at Tamavua-i-wai. He said the accused was looking for a way to surrender himself voluntarily. The witness telephoned a police officer to take the Respondent away. The Respondent was carrying a gun.

Another witness Watisoni Tabuaniviti, an army officer, gave evidence that on the day of the mutiny the armoury had been taken over by the mutineers. He went to the armoury and was searched by someone. He saw his friends were all locked in a bag inside the armoury. He did not see the accused.

There was evidence from one of the men in the armoury who said that he had been locked up by one Sergeant Maika. He did not implicate the accused. There was also evidence that the Respondent was a former member of the regular army but was only in the reserves at the time of the mutiny. Inspector Nacanieli Veremalua gave evidence that the Respondent had surrendered to police custody on the 5th of November 2002 and that he and his companion one Jone Naisara, had been in possession of two M16 rifles, one with telescopic sight, 30 magazines, and loose live rounds, 1 hand grenade and 2 flares. These weapons were apparently handed to SSP Tikotikoca who then gave them to Inspector Veremalua. Inspector Veremalua gave them to Inspector Filimoni Seniroqa who exhibited them in court.

Detective Constable Rupeni Wara gave evidence that he had interviewed the Respondent under caution on the 6th of November 2000, that the interview was given voluntarily and that the Respondent had signed it. The original was lost but the police was using the carbon copies. He read out the interview. Unfortunately the record of the interview is not on the court record, nor is it in the original court file. I have no information about its contents.

Sergeant Luke Navela gave evidence that the interview was voluntary and that the original had been sent to the DPP’s Office. It was later found to be missing, but Sergeant Navela had kept the carbon copies which he identified. He said he had made a thorough search for the original.

The learned Magistrate then ruled that the carbon copies of the interview were inadmissible because “the onus put on the prosecution to prove that the original caution interview has been irretrievably lost has not been met.”

The prosecution case was closed and the defence made a submission that there was no case to answer. On 8th November, the learned Magistrate delivered her ruling. She asked herself whether the prosecution evidence taken at its highest was so “manifestly unreliable that no reasonable tribunal would safely convict upon it.” She held that on Count 1, there was no positive identification of the Respondent as being a person at the scene during the mutiny. She held on Count 2, that although there was evidence that the Respondent was armed, there was no evidence that he had caused terror to the community. On Count 3, she held that the prosecution had failed to call SSP Tikotikoca to give evidence that the Respondent was in custody of the arms found and that he had seized the M16 rifle from him. She found that there was insufficient evidence to put the Respondent to his defence and she acquitted him.

The grounds of appeal

The grounds of appeal are as follows:

(a) That the learned Magistrate erred in law and in fact by failing to admit the carbon copy of the caution interview statement. Durston –v- Mercuri [1969] VicRp 62; (1969) VR 507 followed by Hay –v- Mitchell (1973) 2 NSW LR 736 & Rivers –v- Fuller, ex parte Rivers (1977) Qd R 97.

(b) That the learned Magistrate erred in law and in fact when he failed to grant the Appellant an adjournment to enable the attendance of a material witness, a senior police officer who had gone abroad, to give evidence.

(c) That the learned Magistrate erred in law and in fact in acquitting the Respondent under section 210 of the Criminal Procedure Code, Cap. 21, failing to consider the totality of the Appellant’s evidence.

At the hearing of the appeal, counsel for the State pursued only grounds (a) and (c). His submission was that carbon copies of documents are admissible as originals and that the learned Magistrate erred in refusing to admit the statements. Counsel for the Respondent argued that the prosecution was still under a duty to prove irretrievable loss before carbon copies could be tendered.

In the oft-cited and well-known case of Durston –v- Mercuri [1969] VicRp 62; (1969) VR 507 the defendant was charged with driving whilst drunk. The certificate of the result of the breath test was lost and the prosecution tendered a carbon copy. The defendant was convicted. He appealed on the ground that the carbon copy was not a proper certificate and could not be tendered as documentary proof of the breath test. It was held that carbon copies of any documents are admissible as primary evidence of the contents of the original document. Mehhennitt J of the Supreme Court of Victoria said at page 542:

“In the present case I am concerned with a document which is a carbon copy of the original and contains everything that was in the original including the signature. Thus it is in one sense the original. The same hand using the same pen produced at the same time the writing on both the original and the carbon copy. In the case of the original the writing was left by the ink from the pen: in the case of the carbon copy it was left by the carbon from the carbon paper. But the words written were both produced by the same writing. In these circumstances I am disposed to think that a carbon copy of a document which is a complete copy in every respect including the signature is for all purposes equivalent to the original and is admissible in evidence as prime evidence of the contents of the original.”

He referred to the decision of McGregor J in Buckley –v- Macken (1961) 1 NZLR 46 who had taken a similar view on the carbon copies of invoices, and of Elliot J in International Harvester Co. –v- Elfstrom 101 Minn 261; 112 N.W. 252 who said in respect of carbon copies:

“If the reproduction is complete, there is no practical reason why all the products of the single act of writing the contract and affixing a signature thereto should not be regarded as of equal and equivalent value. In this instance the same stroke of the pen produced both signatures.”

In Hay –v- Mitchell (1973) 2 NSWLR 736, the Supreme Court of New South Wales came to the same view. On an appeal by way of case stated, Taylor J considered the admissibility of a carbon copy of a breath test analysis certificate where the carbon copy had been served on the defendant at the time of the test. Durstan –v- Mercuri (supra) was followed and the carbon copy was held to be admissible.

In State –v- Maika Soqonaivi Criminal Case No. 0002 of 1996, Pain J considered an objection made by the defence to the admissibility of carbon copies of the caution and charge statement of the accused person. There was evidence that the original documents were lost either in the Magistrates’ Court or the High Court after committal proceedings. A search had been made for them unsuccessfully. Pain J said (at p.2):

“There is clear proof that the original documents were prepared and signed. Indeed the signatures carry through to the carbon copies that the prosecution is seeking to produce .... On the basis of the authorities submitted by counsel for the prosecution and the textbook writings on the subject such as contained in Cross on Evidence and Archbold’s Criminal Law, these copies are clearly admissible. Grounds have been made out for their production as secondary evidence.

Indeed it could well be that on the authority of the decision in Durstan –v- Mercuri [1969] VicRp 62; (1969) VR 507 tendered by counsel for the prosecution, these carbon copies may be admitted as primary evidence. There is no suggestion that they are anything other than true carbon copies identical with the originals in every way and that they bear the signature impression of the Accused.”

The defence was told that in raising the objection it had “occasioned a time-wasting exercise that does no credit to the administration of justice in this court.”

It seems that there is a need to distinguish the rules of admissibility in relation to carbon copies and those relating to photocopies. In order to admit photocopies, the prosecution must prove that the original existed which would have been admissible in itself, that the copy is a true and faithful copy of the original, that the original is lost or destroyed and that a diligent search was made for it, and that there is evidence of how the original was kept before it was lost and of how the copy was made and tendered. These principles were outlined by Goudie J in Reg –v- Vincent Lobendahn (1972) 17 FLR 1, and are relevant to the question of the admissibility of photostat copies. They do not apply to the admissibility of carbon copies, which are, for the purposes of a criminal trial, admissible as primary evidence. Thus in Collins (1960) 44 Cr. App. R. 170, a carbon copy of a letter was treated as an original.

It is clear therefore that Ground (a) of the Director’s grounds of appeal must succeed. The learned Magistrate treated carbon copies as photocopies and in doing so applied the wrong test in law. She ought to have treated the carbon copies as primary evidence and proceeded to admit the caution interviews.

Counsel for the defence submitted to me that he would have objected to the admissibility of the statements anyway, on the ground of lack of voluntariness. However the court record shows that no questions were put to the interviewing officer alleging force, threats, inducements or assault. It was not suggested to him that the interview was not voluntary. Nor was Sgt. Luke Navela cross-examined on the voluntariness of the statement. Clearly the only real ground of objection was that the records were carbon copies. Voluntariness was not an issue. The interview should have been admitted and considered at the no case to answer stage of the trial. Ground (a) succeeds.

Ground (b) was not pursued. Ground (c) was that the learned Magistrate erred in law and fact in acquitting the Respondent. I do not know what the contents of the police interviews were. However State counsel said that they contained admissions in respect of all counts. This was not disputed by counsel for the Respondent. In all the circumstances therefore the admission of the interviews would have altered the result of the no case to answer submissions, irrespective of the way the learned Magistrate found the rest of the evidence. Ground (c) therefore must succeed.

Result

This appeal is allowed. The acquittal is set aside as is the order excluding the evidence of the confessions. The order is substituted with an order that the confessions are (prima face and of course subject to any defence evidence led subsequently) admitted. On that basis, the learned Magistrate must reconsider the submission of no case to answer and rule anew. Alternatively the defence may decide not to make any such submission and proceed to the defence case. That is a matter for the defence.

The case is remitted to the same Magistrate’s Court for continuation of the trial on the basis that the interview and charge statements are admissible in evidence. This appeal succeeds.

Nazhat Shameem
JUDGE

At Suva
20th May 2003