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State v Prasad and Another [2010] FJMC 181; Criminal Case 2074 of 2007 (6 December 2010)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 2074/2007

STATE

V

RONIL RITESH PRASAD,
SATNAM SINGH

For Prosecution : - Ms. Tuiketei A..
Accused : - Mrs. Shah J

RULING

1. Mr. Ronil Ritesh Prasad and Mr. Satnam Singh were charged with the offence of "selling Passport for Personation", which is punishable under section 372 of the Penal Code Act 17.
   
2. At the beginning of the Hearing on 1st of December 2010, the court proceeded to hear the voir dire on the admissibility of the caution interview of the 2nd accused consequent upon the advice of the learned counsel for the 2nd accused that the 2nd accused is challenging the admissibility of the caution interview on the ground of inducement.
   
3. In the midst of the voir dire proceedings, it was transpired to the court that the original caution interview notes of the 2nd accused was lost and prosecution is now relying on the photocopy of the same.
   
4. The learned counsel for the 2nd accused raised her objection to the prosecution for tendering the photocopy of the 2nd accused caution interview notes, which made the court to hold the voir dire hearing and invited both parties to proceed with the hearing on the preliminary issue of admissibility of the photocopy of the caution interview notes of the 2nd accused as an evidence for the prosecution.
   
5. In this preliminary hearing prosecution called one witness Inspector Munsami who was the investigating officer as well as the interviewing officer of the 2nd accused. 2nd accused did not call any witnesses. Upon conclusion of the preliminary hearing I invited both learned counsels to submit their submissions in writing which were filed by both learned counsel.
   
6. Upon considering the evidence adduced by the prosecution and the careful perusal of the submissions of both learned counsels, I now proceed to pronounce my ruling on this preliminary issue of the admissibility of the photo copy of the caution interview of the 2nd accused.
   
7. The Prosecution witness Mr. Munsami, testified that he was the interviewing officer of the caution interview of 2nd accused and he conducted the same in English language in question and answer form on 20th/ 11/2007. He further stated that at the conclusion of the interview, the 2nd accused signed on it which was followed by his signature. Then he went on to proceed to make a photo copy of the notes of the caution interview.
   
8. He testified that the original notes of the caution interview were sent to the office of police prosecution together with the file as per the instruction of Regional Prosecuting Officer for his perusal. Moreover, the witness stated that he kept the photocopy of the notes of the caution interview at his office. I noted that the Mr. Munsami conceded that he can not exactly remember the date of sending the original notes of the caution interview to the office of police prosecution, but stated it may be a week after the 2nd accused was charged.
   
9. The witness gave evidence that he was made aware of the lost of original notes of the caution interview only after the office of Director of Public Prosecution asked him for original notes of the caution interview. Again the witness conceded that he can not exactly remember the date, but stated it may be two weeks before the commencement of this hearing.
   
10. The witness testified that, he conducted a due and diligent search at the Prosecution office, at exhibit room of the central police station, at the crime office of the central police station and at his office. For this diligent search he was assisted by his exhibit writer.
    
11. It should be noted, that the witness testified that the handwriting in the photo copy was his own. Further, he stated that prior to precede with the caution interview, he asked several questions in Hindustani language, which he identified and compared in the photocopy. He reiterated that he is 100% confident the photo copy is the same photocopy he made from the original notes of the caution interview.
    
12. The learned counsel for the 2nd accused, mainly contended in her cross examination, that this photo copy is not a true copy of the original notes of the caution interview. Further she questioned the witness about his decision to conduct the caution interview without a witnessing officer.
    
13. The court was made aware that the handwriting on the first page of the photocopy is difference to the second page, which the witness conceded in the cross examination.
    
14. I now proceed to examine the submissions of the both counsels,
    
15. The submission of the prosecution, forcibly stated, that the evidence of Mr. Munsami, meets the three pronged test established in Regina v Vincent Lobedohn ( 18 FLR 1).
    
16. The learned counsel for the 2nd accused, contended in her submission, that
    
    1. The prosecution has failed to establish that the copy of the document in contest is the true copy of the original interview notes of 2nd Accused,
       
    2. The Prosecution's witness's evidence was not corroborated by anyone,
       
    3. Witness failed to exercise due diligent when he chose not have anyone present in the interview,
       
    4. The prosecution failed to lead any evidence to show that the original documents if available would have been admissible in evidence,
       
    5. The prosecution failed to establish what had happened to the original up to time it was lost,
       
    6. Prosecution failed to establish how Mr. Munsami conducted his search,
       
17. The general rule of primary evidence or best evidence rule in respect of documentary evidence has now being changed to more liberal approach. Ackner LJ held in Kajala v Noble (1982) 75 Cr.App R 149) as cited by Winter J in State v Isimeli Dradroveivali ( HAC 0004 of 2002), " the old rule, that a party must produce the best evidence that the nature of the case will allow and that any less good evidence is to be excluded has gone by the board long ago. The only remaining instance of it is that, if an original movement is available in one's hands, one must produce it, that one cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight and not to admissibility".
    
18. "Cross on Evidence", 7th Australian Edition, Page 1304, stated "there is no reasons why the copy of a copy should not be received in evidence provided the witness producing it, or some other witness makes it clear that the copy produced is a true copy of the first copy and that copy was in its return, a true copy of the original".
    
19. The law relating the admissibility of the copy of the original documents as evidence was succinctly discussed in R v Lobendahn, (supra) where Goudie J held that ' the law in regard to the admissibility in evidence of copies of documents, the originals of which are said to have been stolen or lost may in my view, be outline as follows:-
    
    1. It must be established that the original itself, in fact formerly existed,
       
    2. That such original itself would have been legally admissible in evidence,
       
    3. There must be clear and reliable evidence to establish that the copy which the party wishes to tender as secondary evidence is a true copy and faithful reproduction in all respects of the original document,
       
    4. The original must be proved to have been lost or destroyed and the court must have evidence before it from which it can be satisfied that the original no longer inexistence or that it could not, by any reasonable amount of effort be found,
       
    5. If a document is said to have been lost or possibly destroyed it must be established that "due and diligent search" has been made for the missing document before a copy can be tendered,
       
    6. It must be shown, if necessary, by a proper chain of evidence, what happened to the original from the time the original was made out or first known to be in existence until it was lost. Similarly, it must be established, when, where, and how the copy was made and how it came into the hands of the person seeking to tender it in evidence,
       
    7. All of these matters must be established to the satisfaction of the trial court "beyond reasonable doubt".
       
20. In view of above mentioned legal precedents, and submissions of the both counsels, I now move to carefully examine the evidence adduce before me in order to reach to my conclusion.
    
21. The prosecution witness was the author of the original notes of the caution interview and he testified that he made notes of the caution interview. In his evidence he stated that prior to the proceed with the caution interview; he put several question to the accused in Hindi Language which he recorded at the beginning of the interview. The witness identified and compared that part with the photocopy which he made immediately after conducting the caution interview.
    
22. The evidence of the witness established that he conducted the caution interview and made the notes of it, subsequently, he made a photo copy of the notes of the caution interview. Where he satisfied that the original was formally existed and would have been legally admissible in evidence. Moreover, he established that the photo copy was a true reproduction of the original document.
    
23. At this point, I draw my attention to the learned counsel of the 2nd accused's contention that the handwriting on the first page of the photo copy is somewhat difference to the handwriting on the second page of the photocopy which was conceded by the witness himself. The admission of the witness on the differences in handwriting in first and second pages of the photocopy dose not discredited the fact of true reproduction of the original notes as it was not created a doubt that there was a difference in handwriting between the original document and the photocopy.
    
24. The witness specifically explained his decision of conduct the interview without a witnessing officer though he staggered at that point. I am of the view the absence of the witnessing officer should be dealt at the voir dire hearing, not in this preliminary hearing of the admissibility of the photo copy of the caution interview.
    
25. I am of the view, that the prosecution witness satisfied that required chain of evidence for what happened to the original from the time the original was made out until it was lost. He categorically stated, though he knew the fact that caution interview was an exhibit and placed in the exhibit room, he had to follow the instruction of the regional prosecution officer. He accordingly, had to send the original notes of the caution interview to the police prosecution office, where he later made aware that the original notes of caution interview was lost.
    
26. Furthermore, the prosecution witness satisfied that he made a due and diligent search with the help of his exhibit writer at the office of police prosecution, at the exhibit room of the central police station, at the crime office of the central police station and also at his own office and satisfied that the original notes of caution interview could not by any reasonable amount of effort be found.
    
27. I now consider the contention of the 2nd accused, that Prosecution failed to collaborate the evidence of Mr. Munsami. In this respect, I am of the view, that the evidence of Mr. Munsami was not discredited or shaken in cross examination or by way of witness's demeanour.
    
28. For these abovementioned reasons, I infer to accept the evidence of prosecution witness Mr. Munsami.
    
29. Having considered all the circumstances in this preliminary hearing, I hold the photocopy of the original notes of the caution interview of the 2nd accused is admissible and may be led in evidence in the hearing.
    

On this 06th day of December 2010.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva