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Kumar v The State [2004] FJHC 440; HAA0079.2004L (30 July 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0079 OF 2004L

BETWEEN:

SURESH KUMAR
s/o Ram Samujh
Appellant

AND:

THE STATE
Respondent

Counsel: Mr. A.K. Narayan for the Appellant
Mr. K. Tunidau for the Respondent

Date of Hearing: 16 July 2004
Date of Ruling: 30 July 2004

JUDGMENT

The appellant has pleaded not guilty to the following charge in the Ba Magistrates Court:-

Statement of Offence

GROWING INDIAN HEMP: Contrary to section 8(a) of the Dangerous Drugs Act Cap. 114 and section 3 of the Dangerous Drugs Act as amended by Decree Number 4 of the Fiji Republic Gazette Number 10 of 1990 and section 2 of the Dangerous Drugs Act (Amendment No. 1 Decree of 1991).

Particulars of Offence

SURESH KUMAR s/o Ram Samujh on the 6^th day of February, 1999 at Nailaga, Ba, in the Western Division grew 13 plants of Indian Hemp.

The trial of the appellant is part heard before the Learned Magistrate. In the course of the trial, the Learned Magistrate admitted into evidence the photocopy of the Government Analyst Report, in reliance on section 44 of the Dangerous Goods Act notwithstanding notice had been given by the appellant to the prosecution pursuant to section 191 of the Criminal Procedure Code, requiring the analyst for cross examination. The Government Analyst was apparently not available for cross examination as she was returning to the country that evening.

State Counsel submits that the Learned Magistrate would not allow the trial to be part heard.

The Learned Magistrate in her ruling said:-

“That having listened carefully and having considered very closely argued submissions by both counsels for the accused and prosecution, I agree with counsel for accused that the photocopy of the Government Analyst Report is prima facie evidence only and not conclusive evidence and that section 191 provides the codes that must be followed.

However, pursuant to section 44 Dangerous Drug Act, the Government Analyst Report is allowed to be tendered as a signed report. I agree also with prosecutions that pursuant to section 44 of the Dangerous Drug Act 114, it is a prima facie evidence only. Further, that no legislation supersedes another and that the Government Analyst Report can be tendered.

I rule that the photocopy of the Government Analyst Report is allowed to be tendered as prima facie evidence only but not as conclusive evidence of what it contains.”

Section 44 of the Dangerous Drugs Act states: -

“In any proceedings under this Act, the production of a certificate purporting to be signed by the Government Analyst, shall be prima facie evidence of the facts therein stated.”

The section creates a rebuttable presumption as to the truth of the contents of the certificate.

Section 191 of the Criminal Procedure Code enables the report of a Government Analyst to be given in evidence in any trial unless the accused has given notice of not less than 3 clear days to the prosecutor requiring the Government Analyst to attend as a witness.

Notice had been given on behalf of the accused requiring the Government Analyst to attend as a witness.

To take away the right given to the accused under section 191 of the Criminal Procedure Code would require very specific legislation.

The provisions of section 44 of the Dangerous Drugs Act have not been amended since the commencement of that Act in 1938.

Section 191 of the Criminal Procedure Code was inserted into that Act by amendment in 1969.

It is clear that section 191 of the Criminal Procedure Code and section 44 of the Dangerous Drugs Act are complementary. If no notice be given under section 191 of the Criminal Procedure Code then the provisions of section 44 of the Dangerous Drugs Act would apply to the tendering of an Analyst’s certificate. Section 44 of the Dangerous Drugs Act is not dissimilar from section 191(3) of the Criminal Procedure Code.

The document tendered by the prosecution before the Learned Magistrate was a photocopy and not the original Analyst’s certificate. The appellant and respondent both refer the court to R v Vincent Lobendahn [1972] 17 FLR 1 and the consideration of that authority by Shameem J. in The State v Kanito Matanigasau Cr. Appeal No. HAA0108 of 2002 where Her Ladyship said: -

“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.”

Page 13 of the Court Record indicates that some evidence was given by prosecution witness IP Janti Lal. That evidence is scant indeed and certainly does not satisfy the test as expressed above. Any evidence that was given with respect to search for the document is hearsay.

Conclusion

It seems that the Learned Magistrate may have fallen into error in attempting to ensure that the trial did not become part heard. The ultimate consideration must at all times be the interests of justice and if that necessitates a trial not concluding on the day then so be it.

There is no basis appearing from the Court Record upon which the Learned Magistrate could admit into evidence the photocopy Analyst certificate.

To deprive the accused of the rights given by section 191 of the Criminal Procedure Code would require clear legislative provisions. Section 44, which predates section 191, certainly is not drafted nor can it be interpreted in such a way. Section 44 of the Dangerous Drugs Act and section 191 of the Criminal Procedure Code must be read as being complementary to each other.

Orders

The appeal is allowed.

The Order allowing the tender of the Analyst’s Certificate is set aside. The Order is substituted with an order rejecting the tender of the Analyst’s Certificate.

The matter is remitted to the Learned Magistrate to continue the trial according to law.

JOHN CONNORS
JUDGE

AT LAUTOKA
30 JULY 2004