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Fiji Independent Commission Against Corruption v Kumar [2010] FJHC 55; HAC001.2009 (8 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 001 of 2009

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

V

RAJESHWAR KUMAR; and
JASWANT KUMAR

Hearing: 2nd February 2010
Reasons: 8th February 2010

Counsel: Ms L. Lagilevu & Ms E. Leweni for FICAC
Mr. R. Chaudhary for both Accused

RULING

[1] On 2 February 2010, I granted leave to the prosecution to cross-examine their own witness, Vinita Prasad, in the trial of the two accused persons, who are jointly charged with an offence of abuse of office, in alternative, embezzlement. The application to declare the witness hostile was made in absence of the assessors. I now give reasons for my decision.

[2] Declaring a witness hostile is discretionary. As a general rule, a party who has called a witness is not permitted to cross examine the witness. There are a few exceptions to this general rule. One exception is when a witness is declared hostile towards the party calling the witness.

[3] Before a witness is declared hostile, the judge must be satisfied that the witness bears a hostile animus to the party calling him or her and so does not give his or her evidence fairly and with a desire to tell the truth: Archbold Criminal Pleading Evidence and Practice, 39th §521.

[4] A witness is not hostile when his or her testimony merely indicates that the witness had made a prior inconsistent statement (R v. Klassen, unreported 20/2/96, CA488/95). However, if a statement of a witness for the prosecution is in direct contradiction to the evidence given by that witness, leave can be sought to cross examine the witness as a hostile witness (R v. Frasher (1956) 40 Cr. App. R. 160). In Clarke v. Sathery (1824) Ry. & M. 126, it was held by Best CJ that "if a witness by his conduct in the box, shows himself decidedly adverse, it is always in the discretion of the judge to allow a cross examination."

[5] During her examination in chief, Vinita Prasad was asked whether proper procedure was followed in raising cheque no. 1045 and payment voucher 277/06. Earlier Ms Prasad recognized the handwriting on these two documents to be of the second accused, Jaswant Kumar. She recognized one of the signatures on the cheque to be of the first accused, Rajeshwar Kumar.

[6] When asked to comment on the procedure, Ms Prasad reluctantly said "If it was done in rush then I cannot say if it was improper not to certify the voucher."

[7] Ms Lagilevu in support of her application to treat the witness hostile pointed out that in her statement to FICAC, Ms Prasad had said:

"I wish to comment that the procedure was not followed in the preparation of the payment voucher number 277/06 dated 26-05-06 and the Westpac Banking Corporation cheque number 1045. The procedure violated were that no proper identity, name and the signature of the receiver of the cheque was not entered on the payment voucher. The cheque butt read as "Post Fiji" and the Cheque leaf read "Cash." Once I saw the payment going to Post Fiji I enquired about the payment and found that a payment was already made."

[8] Ms Lagilevu submitted that Ms Prasad’s evidence on the procedure was an extreme departure from her earlier statement and the evidence of procedure was material to the prosecution case. Mr Chaudhary opposed the application saying the prosecution had ample time before the commencement of the trial to verify the witness’s statement.

[9] The evidence of departure of procedure in writing of a cheque and a voucher subject of the charges is highly relevant.

[10] After observing the witness’s demeanor during examination in chief, I am satisfied that she not only contradicted herself but was also reluctant to give truthful evidence on a material issue. I am satisfied that Ms Prasad demonstrated hostility to the prosecution who called her as a witness.

[11] For these reasons, the witness is declared hostile and leave granted to the prosecution to cross-examine her.

Daniel Goundar
JUDGE

At Suva
8th February 2010

Solicitors:
Office of FICAC for Prosecution
Messrs. Gordon & Chaudhary Lawyers for both Accused Persons