IN THE MAGISTRATES COURT AT NASINU

Traffic Case No. 4116/2009

DPP

-v-

UMLESH CHAND

Ms. Nancy Tikoisuva for the Director of Public Prosecutions
Mr. A. Maharaj (MC LAWYERS) for the accused.

Ruling on DPP's Prosecutorial discretion not to call a witness

1] The accused is charged with following counts, namely; 

CHARGE:

FIRST COUNT

Statement of Offence [a]

DANGEROUS DRIVING OCCASIONING DEATH: Contrary to Section 97 (2) (c) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence [b]

UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby caused the death of Shalen Prakash.

SECOND COUNT

Statement of Offence [a]

DANGEROUS DRIVING OCCASIONING DEATH: Contrary to Section 97 (2) (c) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence [b]

UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby caused the death of Navneet Narayan.

THIRD COUNT

Statement of Offence [a]

DANGEROUS DRIVING OCCASIONING DEATH: Contrary to Section 97 (2) (c) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence [b]

UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby caused the death of Ratu Malakai Banuve.

FOURTH COUNT

Statement of Offence [a]

DANGEROUS DRIVING OCCASIONING DEATH: Contrary to Section 97 (2) (c) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence [b]

UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby caused the death of Salanieta Kotoimoala Miutamata.

FIFTH COUNT

Statement of Offence [a]

DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97 (4) (c) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence [b]

UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby occasioning grievous bodily harm to Litia Cagimaira.

SIXTH COUNT

Statement of Offence [a]

DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97 (4) (c) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence [b]

UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby occasioning grievous bodily harm to Sudesh Prasad.

SEVENTH COUNT

Statement of Offence [a]

DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97 (4) (c) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence [b]

UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby occasioning grievous bodily harm to Ratu Peni Muakalou.

EIGHTH COUNT

Statement of Offence [a]

DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97 (4) (c) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence [b]

UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby occasioning grievous bodily harm to Samanunu Kalouniceva.

NINETH COUNT

Statement of Offence [a]

DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97 (4) (c) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence [b]

UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby occasioning grievous bodily harm to Renuka Prasad.

2] Therefore, the Accused faces 4 counts of Dangerous Driving Occasioning Death Contrary to Section 97 (2) (c) and 114 of the Land Transport Act No. 35 of 1998; and 5 Counts of Dangerous Driving Occasioning Grievous Harm Contrary to Section 97 (4) (c) and 114 of the Land Transport Act No. 35 of 1998.

3] The matter was heard on 15 – 18th May 2012 and on 24th May in which Prosecution called 7 witnesses out of the 23 witnesses as contained in the bundle of disclosures.

4] The court made scene visit along with counsels before trial commenced. The Agreed facts were also tendered before trial. The State led witnesses, documents were tendered in Court and they were cross examined by the defence. 

5] At the very out set of the trial, on 15th May 2012, the learned State Counsel told the Court that the State was not intending to call 1 witness (Ema Kaibau) whom she has turned over to the Defence. The defence indicated that they would take objection for this the application at the proper stage which was allowed by this court.

5] When the prosecution tried to close their case the defence raised following objections;

a)	Not to allow the Prosecution to close their case;

b)	Thereafter, compel the State to call a witness- Ema Kaibau in the interest of justice.

6] The State said that this is an unusual application the defence makes the application under the inherent jurisdiction of the Magistrate Court to exercise its powers. Further they said that the application made by the Defence orally differs to the written submissions as produced in Court on 24th May 2012. I cannot see drastic difference in those applications. 

7] The defence filed written objections to the State's closure of its case and sought that witness be called as the prosecution witness before the closure of the prosecution case. The State opposed to it and filed written objections. The Defence has also filed their reply to the State's opposition. I am mindful of both submissions and I thank both counsels at this juncture for enlightenment to the court. I have carefully considered substances on them. 

8] The defence application is based on R v Russell Jones (1995) 1 Cr. App. R. 538 and the State accepts the case authority of R v Russell Jones (1995) 1 Cr. App. R. 538 referred to by the Defence. But the State relies on the considerations made by the Court of Appeal in the above case and stressed;

"5. It is for the Prosecution to decide which witnesses give direct evidence of the primary facts of the case. A Prosecutor may reasonably take the view that what a witness has to say is at best marginal.

6. The Prosecutor is also the primary judge of whether or not a witness to the material events is incredible, or unworthy of belief. It goes without saying that he could not property condemn a witness as incredible merely because, for example, he gives an account at variance with that of a larger number of witnesses, and one that is less favorable to the Prosecution case that that of the others.

7. A Prosecutor properly exercising its discretion will not therefore be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the prosecution rely. To hold otherwise would, in truth, be to assert that the prosecutions are obliged to call a witness for no purpose other than to assist the defence in their endeavor to destroy the Crown's own Case No. sensible rule of justice could require such a stance to be taken." (Emphasis added) 

9] Furthermore, they rely on Dhansukh Bhika & Others v State Miscellaneous Case No. HAM 85/2008, Judge Shameem stated as follows:

"The decision to prosecute is an executive one, made by the independent office of the DPP. The DPP is not just independent of the other executive institutions of Government but is also independent of the Courts. The DPP's decisions are only reviewable by the Courts where he or she acts in bad faith or for an improper motive. Generally the Courts do not trespass into the territory of the prosecutorial discretion. To do so would undermine the Court's own impartiality and independence in that it would force the judiciary into the partisan arena of deciding who should or should not be prosecuted". (Emphasis added) 

10] The State further submitted following quotes of R v Grafton 96 Cr. App. R 156, CA; 

"Subject to what is said below (in reference to R v Russel Jones) the question of who should be called to give evidence for the prosecution is for prosecuting counsel to resolve. Where counsel is reluctant to call a witness, it is wrong for the trial judge to insist on the witness being called by the Prosecutions." (Emphasis added) 

11] The State submits that as the Courts have recognized the prosecutorial discretion to lay charges, the Prosecution also has the discretion to close its case, not call any witness. But State admits the circumstances in which such a principle above could fetter with is as follows:

a)	To promote a fair trial

b)	If the Prosecutor has been influenced by some oblique motive, that is, the Prosecutor has acted out of malice.

12] The State further submits that in the absence of evidence provided by the Defence in order for the Court to exercise its judicial discretion as noted above, the Court cannot draw such inferences and make such orders to interfere with the discretion of the Prosecution to call its witness let alone, close its case.

13] The State canvassed to exercise court's discretion under section 116 of the Criminal Procedure Decree of 2009. The incident occurred in 2008 and the Criminal Procedure Decree has no retrospective effect (But it may apply under section 301 of the Crimes Decree 2009). But the applicable procedure could be found in Criminal Procedure Code as well. The corresponding section is identical to section 116 of CPD. That is section 135 of the CPC. It says;

 "135. Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine any person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case:

Provided that the prosecutor or the barrister and solicitor for the prosecution or the defendant or his barrister and solicitor, shall have the right to cross-examine any such .person, and the court shall adjourn the case for such time (if any) as it thinks necessary to enable such cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of any such person as a witness."

14] The State says that Magistrate Court does not have inherent jurisdiction and it is a creature of statute. The State further submits that in accordance with Section 5 of the Administration of Justice Decree of 2009, the upper courts such as High Court, Court of Appeal and Supreme Court have inherent jurisdiction. Section 5 of the Administration of Justice Decree says; 

"(5) (1) Each of the High Court, the Court of Appeal and the Supreme Court has the jurisdiction, including the inherent jurisdiction, conferred on it by this Decree or by any other law.

No Court shall be vested with jurisdiction save as is or may be conferred on it by this Decree or any other law."

15] This Court admits that the judicial discretion of the Magistrate can only be exercised under Section 135 of the Criminal Procedure Code and this court has no inherent powers to call a witness apart from that. Current section is 116. The State's contention is that the court to call this witness under section 116 and the witness could be cross examined by both parties. 

16] However defence contention is somewhat different to the State. They said that the law in respect of witnesses the Prosecution choose not to call is enunciated in the case of R v Russell Jones (1995) 1 Cr. App. R. 538. They rely on following principles; 

"a) Generally speaking the Prosecution must have at Court all witnesses whose statements have been served as witnesses on whom the Prosecution intend to rely, if the defence want those witness to attend. In deciding, which statements to serve, the Prosecution have an unfettered discretion, but must normally disclose material statements not served.

b) The Prosecution enjoy a discretion whether to call, or tender, any witness they require to attend, but the discretion is not unfettered.

c) The first principle which limits this discretion is that it must be exercised in the interests of justice, so as to promote a fair trial. The dictum of Lord Thankerton in Adbel Muhammed El dabbah – v – Att-gen of Palestine (1994) A.C. PC (Court will only interfere if Prosecutor has been influenced by some oblique motive), does not mean that the Court will only interfere if the Prosecutor has acted out of malice; it means that the Prosecutor must direct his mind to his overall duty of fairness, as a Minister of Justice. Were he not to do so, he would have been moved by a consideration not relevant to his proper task in that sense, as oblique motive.

d) The Prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason. In any instances, they regard the witnesses' evidence as unworthy of belief. In most cases, the jury should have available all of that evidence as to what actually happened, which the Prosecution, when serving statements, considered to be material, even if there are inconsistencies between one witness and another. The defence cannot always be expected to call for themselves witnesses of the primary facts whom the Prosecution has discarded. For example, the evidence they may give, albeit at variance with other evidence called by the Crown, may well be detrimental to the defence case. If what a witness of the primary facts has to say is properly regarded by the Prosecution as being incapable of belief, or as some of the authorities say, "incredible", then his evidence cannot help the jury assets the overall picture of the crucial events; hence, it is not unfair that he should not be called".
(Emphasis added) 

17] In King v R (1986) 67 ALR 379 the court clearly describe the duty and role of the Prosecutor. The duty of a Prosecutor is to regard themselves as Ministers of Justice, to present the case against the accused fairly and honestly and not to use any tactful maneuver legally available in order to struggle for to secure a conviction. 

18]	In the case of Whitehorn v R (1983) 49 ALR 488 Deane J issued a guidance as to the central obligations of the Crown which reads as follows:-

"The observance of traditional consideration of fairness requires that prosecuting counsel refrain from deciding whether to call a material witness by reference to tactful consideration. Whether or not their names appear on the back of the indictment or information, all witnesses whose testimony is necessary for the presentation for the whole picture, to the extend that it can be presented by admissible and available evidence, should be called by the Crown unless valid reason exists for refraining from calling a particular witness or witnesses, such as that the interest of justice would be prejudiced rather then served by calling of an unduly large number of witnesses to establish a particular point. All available witnesses whose names appear on the back of the indictment or who were called by the Crown to give evidence on any committal proceedings which preceded the trial should be called to give evidence, or, where the circumstances justice the Crown in refraining from leading evidence from such a witness, either be sworn by Crown to enable cross-examination by the accused or, at the least, be made available to be called by the accused. Among the considerations which may justify the Crown in refraining from leading evidence from a particular witness is that the evidence which he or she would give is plainly untruthful or unreliable. If the Crown proposes to refrain from calling a witness a person whose name appears on the back of the indictment or information or whom it would otherwise be expected to call as a matter of course, it should communicate that fact to the accused or his lawyer a reasonable time before the commencement of the trial. If the accused seeks to be told why the Crown is refraining from calling such a witness, fairness to the accused would ordinarily require that the Crown communicate the reason or reasons".

19] Powers of the Court to order Prosecution to call a witness is a rule of common law. In R v Brown (D) and Brown (M) (1997) 1 Cr. App. R. 122 held that the Court enjoys a power to order the Prosecution to call a witness, whose evidence is material to the case. 

20] The proper role of the prosecutor, contrary to popular perception, is not that of a partisan persecutor bent on securing the conviction of an accused person but rather that of a quasi-judicial 'minister of justice' whose detached function is to seek justice and to ensure fairness.

21] In R v Livingstone [1993] Crim LR 597 at 598 the English Court held that; 

"The question of discovery in criminal cases is not the sort of tactical tit for tat or a game of Happy Families played according to technical rules such as if you do not say thank you for the card you lose your turn. It is a serious matter conducted in a court of law and, one piously hopes, in a court of justice as well"

22] With above guidelines, had the prosecution rightly exercised their discretion not to call this witness? In Richardson – v – The Queen (1974) 131 CLR 116 the court laid down the criteria of the prosecutor is not bound to call a witness. It was held; 

"However, a Prosecutor is not bound to call a witness, even an eye witness, whose evidence he judges to be Unreliable, Untrustworthy or Otherwise Incapable of Belief"

23] In this case the learned DPP's counsel in her submission mentioned paragraph 2.4;

"On 15th May 2012, the State verbally advised the Defence and also alerted the Court that the State was not intending to call 1 witness whom we have turned over to Defence. The witness was verbally advised of the same. This was done after an assessment was made regarding the nature of the evidence of the witness and after having to assess her recollection of events at present."

24] In ascertaining the reliability, in the case of R v Kneebone (1999) 47 NSWLR 450 (CCA) the court held;

"In reaching a view as to reliability, it is clear that it is not an adequate basis to conclude that the witness is unreliable, merely because the witness' account does not accord with some theory which is attractive to the Prosecutor. An approach, whereby the witness is not called at all or is left to the defence to call because the witness' evidence is seen as not fitting the Prosecution's view of the case is likely to lead to a miscarriage of justice" 

25] In the instant case the Learned Prosecutor thinks not to call Ema's evidence as her evidence appears to favor the accused. ("Witness whom we have turned over to Defence".)

26] This court is willing to reiterate the well established obligation of the prosecution in R v Lucas (1973) VR 693 (CCA) wherein Newton J and Norris AJ at page 705 stated as follows:-

"In is very well established that prosecuting counsel are Ministers of Justice, who ought not to struggle for a conviction nor be betrayal by feelings of professional rivalry, and that is their duty to assist the Court in the attainment of the purpose of criminal prosecution, namely, to make certain that justice is done as between the subject and the State. Consistently, with these principles, it is the duty of the prosecuting counsel not to try to shut out any evidence which the jury could reasonably regard as credible and which he could be of importance to the accused's case".

27] In the case of R – v – Armstrong (1998) 4 VR 533 (CA) wherein the Court allowed the appeal where a prosecution refused to call an eye witness and stated as follows:-

"In general, the Crown would be expected to call eye witnesses of any events which go to prove the elements of the crime charged even though they give accounts inconsistent with the Crown Case".

28] In the instant case the witness was in the Mini Van at the particular time of the incident. Witness Ema was one of the eye witnesses who was present in the Mini Van at the material time. She is a teacher with a level of education could be a best witness to give a proper account and the circumstances in which way the accident happened. Her statement was attached to the defence submission. The Learned Prosecutor told that this is an improper behavior as it may prejudice to the court's mind. But it helps to decide whether this statement is helpful and useful to find the truth. Therefore no sinister had been done by tendering this. She had given statement to the police just immediately after the accident her mind was clear and fresh. Therefore, there is no chance for concoct a story. On top of that she was on the second seat behind the driver and had clear opportunity to observe what had happened. Her educational and professional background ties her to tell the truth and superficially one can not say she is favouring to the defence. Those are the court assessment of this witness. 

29] The Prosecution in its submissions has not stated why they have decided that the witness is unreliable and favoring the accused. The Learned Prosecutor failed to disclose to the Court what materials she used and/or relied upon to decide not to call the said witness. The prosecution failed to prove any sufficient to that effect. Mere assertion that the witness has gone back against them/the prosecution or witness was being tampered by the defence is not sufficient. Thus, it seems that refusal to call this witness is not accordance with the above established principles of law.

30] In this scenario, the court notes the refusal would be highly prejudicial and unfair to the interest of justice. In line with the prosecution's contention one can say why the court can not call this witness under section 116 of the Criminal Procedure Decree.

31] Calling an uncalled witness is a discretionary power of the court. If the prosecution has a duty to call witness and adduce truth before this court, the court should not put its hands to the duty of the prosecution as the court has a duty to maintain the neutrality. In R. V. Sussex Justices, ex –parte McCarthy [1924] 1 KB 256 Lord Hewart stressed " It is not merely of some importance, but it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done" (Emphasis is mine).

32] The administration of the justice is primary concern of a court. The counsels as officers of court (Section 51 of the Legal Practitioners Decree 2009) should always uphold and strive to do the justice. At the end of the day justice is to be prevailed even heaven falls. This denotes the legal maxim of "Fiat Justitia Ruat Caelum" (also Fiat Justitia, et pereat mundus- Let there be justice, though the world perish). In Brickfied Properties Ltd v. Newton [1971] 3 All ER 328 at 336 b. Sachs LJ Stressed that Legal proceedings are serious matters in which the parties seek and are entitled to justice. Thus, this not a hide and seek game. It is a serious issue of other's life though our life is not put in a trial or trouble. I therefore hold without any reasonable ground that the State is unwilling to call this witness, which cannot be tenable. While admitting a Prosecutor is not bound to call a witness, even an eye witness like this, the court holds that prosecution failed to show that this witness is Unreliable, Untrustworthy or Otherwise Incapable of Belief. I further hold this witness is a vital, crucial witness to find the truth and administer justice. I therefore uphold the defence's objections.

33] I make following orders;

a)	That the State should call Ema Kaibau as a prosecution witness before closing of its case.

b)	That the State should subpoena this witness on next hearing date to give evidence.

c)	No Cost

On 31st of July 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Magistrate-Nasinu