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State v Waqabitu - Ruling [2015] FJHC 384; HAC203.2012 (19 May 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 203 of 2012

STATE

v

LAISIASA WAQABITU

Counsel: Ms. S. Kant for State
Mr. P. Tawake for Accused

Date of Hearing: 18th May 2015
Ruling: 19th May 2015

RULING
[On admitting secondary evidence]

1. Prosecution moves to tender the photocopy of the caution interview statement of the 1st accused in evidence as secondary evidence stating that the original caution interview statement is lost and cannot be found.
   
2. The test to be applied in accepting photocopies as secondary evidence was clearly laid down in case of R v. Vincent Lobendahn(1972) 18 FLR1. The prosecution has to prove the following factors beyond reasonable doubt.
   
   • (i) The prosecution must prove that the original formerly existed which would have been admissible in itself;
     
   • (ii) That the copy tendered is a true and faithful reproduction of the original;
     
   • (iii) That the original must be proved to have been lost or destroyed;
     
   • (iv) If lost, that a diligent search was conducted;
     
   • (v) That it must be shown as to what happened to the original up to the time when it was lost and the original was kept safely before it was photocopied and a copy made from it.
     
3. In this case D/C 4281 Joji testified that as the Investigating Officer he photocopied the original caution interview statement and compiled it in the docket which was produced as an exhibit. Original statement was put in an envelope and handed over to the Exhibit writer in 2012.
   
4. He had taken the envelope on a later date to DPP's office and again taken it back and handed it over to the Exhibit writer. He testified as the officer who recorded the original caution interview statement. His evidence that he photocopied the original statement and that the photocopy tendered in court was the faithful reproduction of the caution interview statement was not challenged by the defence in cross examination. However he said that he cannot say where it was misplaced or lost.
   
5. The Exhibit writer said in evidence that the envelope was registered and kept in the Exhibit room. However she had failed in her duty when she did not check the contents in the envelope. When she was informed by 1.00pm that it is lost, she had searched for it in the exhibit room for about 40 minutes before she came to DPP's office and then to court the same day to give evidence.
   
6. The officer from the DPP's office Mini Deo Sharma also testified that he with 2 other officers searched for the original caution interview statement in the DPP's office without success.
   
7. It is unchallenged evidence that the photocopy produced in court is a faithful reproduction of the original caution interview statement recorded by D/C 4281 Joji. Evidence was led to prove that the original caution interview statement has been lost.
   
8. Counsel for the 1st accused submitted that the prosecution has not conducted a diligent search. There is no rule as for how long the search should be made. Court cannot expect the prosecution to vacate the trial and keep on searching for the lost document for months.
   
9. I find that the prosecution has proved beyond reasonable doubt that the original caution interview statement existed, the photocopy tendered is a true and faithful reproduction of the original and also that a diligent search was conducted when it was found to be lost.
   
10. Therefore I allow the prosecution to tender the photocopy of the caution interview statement of 1st accused subject to the ruling to be given in the Voir Dire Inquiry.
    

Priyantha Fernando
Judge

At Suva
Office of the Director of Public Prosecutions for the State
Office of the Legal Aid Commission for Accused