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Singh ats Police [1944] FJLawRp 4; [1875-1946] 3 FLR 371 (26 August 1944)

[1875-1946] 3 FLR 371

SUPREME COURT OF FIJI

Appellate Jurisdiction

DEORAJ SINGH

ats

POLICE

Corrie, C.J.

August 26, 1944

Liquor Ordinance 1932-s.64B^[1] - supplying liquor for consumption elsewhere than on the premises where it is supplied - liquor supplied on a public road - whether an offence within the section - Summary Jurisdiction Procedure Ordinance, 1876-s.15^[2] - District Commissioner fails, to compel attendance of witnesses after application by defence - no affidavit that witness material and unwilling - whether prosecutor has any duty to produce witness for the defence.

Appellant had supplied liquor to a member of the United States Naval Forces when in uniform. The supplying took place on a public road. At the hearing, when appellant was convicted, counsel for the defence applied to the District Commissioner for suboenas to compel attendance of two persons the defence desired to call as witnesses but the District Commissioner held that he was unable to do so.

HELD –

(1) The supply of liquor to a member of the United States Forces on a public road is an offence under s.64B of the Liquor Ordinance.^[3]

(2) Appellant having failed to proceed in accordance with s.15 of the Summary Jurisdiction Procedure Ordinance^[4] there was no failure of duty on the part of the District Commissioner in not taking steps to compel attendance of the persons required by the defence.

(3) It is no part of the duty of the prosecution to produce witnesses for the defence.

[EDITORIAL NOTE -See the Criminal Procedure Code (Cap. 4) ss.132, 134 as to compelling attendance of witnesses:]

APPEAL AGAINST CONVICTION. The facts and arguments appear from the judgment.

P. Rice for the appellant.

A. G. Forbes for the respondent.

CORRIE, C.J.-This is an appeal against the judgment of the District Commissioner for the Central District whereby the appellant was convicted of having, on the 15th September, 1943, unlawfully supplied liquor to a member of the United States Naval Forces when in uniform, in contravention of s.64B of the Liquor Ordinance 1932, as amended by the Defence (Amendment) (No. II) Regulations, 1940, and the Defence (Amendment) (No. 31) Regulations, 1942. The appellant was sentenced to one month's imprisonment with hard labour and to pay a fine of £50, or in default, to serve a further term of two months' imprisonment.

The first ground of appeal is that the conviction is bad in law.

S.64B of the Liquor Ordinance as amended is in the following terms:-

"64B. Any person who gives or supplies any liquor to, or acts as agent for the purchase of any liquor for, any member of any of His Majesty's Naval, Military or Air Forces, or any member of the Naval, Military or Air Forces of any allied Foreign State, when in uniform, for consumption elsewhere than on the premises where it is given, supplied or purchased, shall be guilty of an offence and shall be liable to imprisonment for six months or to a fine of £100 or to both such imprisonment and fine."

The evidence of the witnesses for the prosecution is that liquor was supplied by the appellant on the public road, and the argument for the appellant is that the public road certainly is not 'premises' within the meaning of the section, and hence that no offence was committed.

I am satisfied, however, that such is not the meaning of the section. I hold that any person who supplies liquor to a member of the forces when in uniform, except upon premises and for consumption upon these premises, commits an offence under the section.

The next ground of appeal is that, after proper application in that behalf had been made to the Court by appellant's counsel, the Court wrongly held that it was unable to compel the attendance of certain witnesses referred to in the record of the proceedings as "the Commanding Officer of the sailors unit who are giving evidence and sailor Swistowich and the Provost-Marshal"; and that, in consequence, the defence was seriously prejudiced.

As regards the Commanding Officer and the Provost-Marshal, the appellant's counsel states that they were to be called to prove that the witnesses for the prosecution, Teaton and Durian, were not technically members of the United States Forces, being at the time in the employment of the United States Maritime Commission.

It must be noted, however, that Teaton, in giving evidence, described himself as "member of U.S. Naval Forces" and Durian described himself as "Seaman 1st Class U.S. Navy." It is clear that they were in uniform, as they are referred to throughout the evidence as "the sailors", and no question was put to either of them suggesting that he was not a member of the United States Naval Forces. In these circumstances, the appellant cannot now say that he has been seriously prejudiced, or prejudiced in any way, by the non-appearance before the Court of the Commanding Officer or the Provost-Marshal.

The appellant's reason for asking that Swistowich be heard as a witness was that, according to counsel's instruction, Swistowich would give evidence contracting Teaton and Durian.

A member of the United States Forces stands, as regards liability to give evidence in the Courts of this Colony, in the same position as a member of His Majesty's Forces, and his attendance for the purposes of giving evidence is ordinarily obtained in the same manner, namely, by applying to the Naval or Military Officer under whose command he is serving. But there is nothing to prevent a District Commissioner from issuing a summons if he should see fit to do so. Before, however, a District Commissioner can be called upon to issue a summons, the provisions of s. 15 of the Summary Jurisdiction Procedure Ordinance 1876^[5] must be observed. That section provides that:-

"If oath according to the Form 6 in the Schedule hereto be made before a District Commissioner or Justice of the Peace the material evidence can be given by or is in the possession of any person who will not voluntarily attend to do so or will not voluntarily produce the same it shall be lawful for such District Commissioner or Justice of the Peace to issue a summons according to the Form 7 in the Schedule hereto to such person requiring his attendance or requiring him to bring and produce for the purpose of evidence all documents and writings in his possession or power."

The appellant's counsel did not see fit to proceed in accordance with s.15, and it follows that there was no failure of duty on the part of the District Commissioner.

The final ground of appeal is that the police prosecutor refused to assist the defence in obtaining the attendance of the above named witnesses.

Clearly, it is no part of the duty of the prosecution to produce witnesses for the defence, and there is no substance in this ground of appeal. Actually, the appellant's solicitor had applied to the Military Police to obtain the attendance of these witnesses, and at the hearing on the 8th July, Sergeant Gudrence of the Military Police attended and gave evidence that Swistowich was sick and unable to attend. The hearing was adjourned for the defence to produce further evidence, and at the adjourned hearing appellant's counsel informed the Court that Swistowich had been advised through the Military Police to attend but had not appeared. It was open to him then to proceed under s. 15 of the Summary Jurisdiction Procedure Ordinance, but no further step was taken with regard to obtaining the attendance of this witness.

The appeal is dismissed.

^[1] S.11(1) of the amended Ordinance
^[2] Now s.26 of Cap 152. Revised Edition Vol II page 1670.
^[3] Rep. Vide Liquor Ordinance 1946 s.67
^[4] Rep Vide Editorial Note.
^[5] Rep Vide Criminal Procedure Code, Cap. 4 ss.132,134.