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State v Baleinasuva [2013] FJMC 316; Criminal Case 1501.2010 (11 June 2013)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

CRIMINAL CASE NO.1501 OF 2010

STATE

-V-

VILIAME BALEINASUVA

For the state: Ms. Fatiaki
For the Accused: Mr. Dawai M. [Present]

RULING

Introduction

1. The Accused was charged for the offence of Unnatural Offence; Contrary to Section 175 (a) of the Penal Code, Act 17.

2. The particulars of offence read as follows; VILIAME BALEINASUVA between the 01st day of January 2006 to the 31st day of December 2006 at Delainavesi, in Lami in the Central Division had carnal knowledge of BEN( Name suppressed) against the order of nature.
   
3. When the trial proceeded on 8th October 2012, after the close of the prosecution case, the accused chose to exercise his right to remain silent but two defence witnesses were to be called, namely the accused's grandparents, Mr. Peni and Mrs. Mereani Seruvatu.
   
4. Mrs. Seruvatu was called first and in her evidence, she informed the Court in examination in chief, that for most of 2006, the accused was either with his grand uncle who lived just close by to their residence at Delainavesi whom he would accompany fishing for most days and for most of the year, he was away in Nadi living with his aunty who is his father's sister.
   
5. The State then objected to the above evidence being adduced as it argued that the same amounted to an alibi and it had not received the necessary notice to allow them time to investigate the truth of these matters.
   
6. The defence submitted that Defence Counsel informed the Court that as far as the accused's grand uncle was concerned, it was not an alibi as his grand uncle lived within the vicinity of the alleged crime scene therefore the accused still had access to the complainant and was not entirely absent to warrant an alibi notice being necessary. The Defence therefore did not view his grand uncle as an alibi witness.
   
7. So far as his aunt is concerned, Defence Counsel conceded that it had not given an alibi notice to the Prosecution mainly because this information was not available to her at the time when she was given instructions and the accused's defence from the outset was not one that entailed an alibi but rather an outright denial of the allegations.
   
8. The prosecution also rely on State v Peniasi Tirikula Criminal Case No: HAC 105 of 2006 and the defence relies on State V Ram [2010]FJHC124.2008s.
   
9. Sec.125.—(1) of Criminal Procedure Decree states that;
   

On a trial before any court the accused person shall not, without the leave of the court, adduce evidence in support of an alibi unless the accused person has given notice in accordance with this section.

10. 125(2)(3) and (4) states that;
    

(2) A notice under this section shall be given—

(a). within 21 days of an order being made for transfer of the matter to the High Court (if such an order is made); or

(b). in writing to the prosecution, complainant and the court at least 21 days before the date set for the trial of the matter, in any other case.

(3) The notice given under this section, and the subsequent actions of the accused person in relation to the notice must comply with the following requirements—

(a). the notice must include the name and address of the witness, or, if the name or address is not known to the accused person at the time of giving notice, any information in the possession of the accused person which might be of material assistance in finding the witness;

(b). if the name or the address is not included in the notice, the Court must be satisfied that the offender, before giving the notice, took and then continued to take all reasonable steps to ascertain the name or address;

(c). if the name or the address is not included in that notice and the accused person subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness, the accused person must promptly give notice of the name, address or other information, as the case may be; and

(d). if the accused person is notified by or on behalf of the prosecutor that the witness has not been traced by the name or at the address given, the accused person must promptly give notice of any information which is then in the possession of the accused person or, if he or she subsequently receives any such information, the accused person must promptly give notice of it; and

(e). the notice must also provide a summary of the material facts that any alibi witness might be expected to give as evidence during the trial.

(4) Any evidence tendered to disprove an alibi may, subject to any directions by the court as to the time it is to be given, be given before or after evidence is given in support of the alibi.

11. Furthermore her ladyship held that at paragraph 3 Shameem J in the case of State v PeniasiTirikulain as follows;
    

"I find the late alibi notice given by the defence to be incomprehensible. If the Accused was represented in March 2008 and the issue of an alibi already raised at that time, why was an alibi letter not given until the 26th of January 2009? Indeed, the form of the letter of the 26th of January does not fulfill the requirements of section 229 of the Criminal Procedure Code which requires disclosure of the "particulars of the alibi." Why was the alibi notice not given last year in March when, according to Mr. Rayawa, Sousou Cava's name was disclosed by the defence? The court might be prepared to exercise discretion in favour of an unrepresented accused, but in this case the Accused has been represented in the High Court since the 13th of March 2008. The late notice of alibi witnesses, the changing identity of the witnesses and the lack of any adequate explanation for the failure to give notice lead me to a conclusion that the Accused should not be permitted to call alibi witnesses of whom the 3 prosecution has had no notice, or whose identity has now changed. I do grant leave to the defence to call Iliesa Sousou Cava, whose statement has been recorded by the prosecution. No other alibi witnesses may be called."

12. His lordship Salesi Temo stated in State v Ram [2010] FJHC 451; hac124.2008S(1 September 2010) that

"The power to grant leave (for an alibi in the absence of notice) is a judicial discretion which must be exercised judiciously. The overall interest of justice must be served when a judicial discretion exercised. His lordship further stated that as follows;

"I have carefully considered the defence and prosecution's position on the matter. As a matter of practice, the defence should strictly comply with the alibi notice required. The case was transferred to the High Court on 17th July 2008, and there was ample time for the defence to comply with alibi evidence notice requirement. At the same time, the prosecution was well aware of the defence alibi evidence, because the same were contained in the accused's' caution interview statements, taken by the police shortly after the alleged murder. As a result, I will grant leave to accused No 1, 2, 3, 5 and 6 to adduce evidence in support an alibi, so long as the same were the ones mentioned in their caution interview statements. They are not allowed to adduce evidence in support of an alibi outside those mentioned in the caution interview statement."

13. Her ladyship Shameem J in the case of State v PeniasiTirikula (supra) that: "the Court also made the observation that the court might be prepared to exercise discretion in favour of an unrepresented accused but in the present case the Accused had been represented in the High Court since 13th March 2008." In the present case if the Accused was not represented then the Court might be prepared to exercise its discretion however, the Accused had been represented since 3rd December 2010.
    
14. After the close of the prosecution case, the accused chose to exercise his right to remain silent but two defence witnesses were to be called, namely the accuser's grandparents, Mr. Peni and Mrs. Mereani Seruvatu.
    
15. The Defence submits that should the accused not be allowed to rely on his alibi, he will be denied the very chance to prove his innocence. Therefore it is in the "overall interest of justice" to allow the accused to rely on his alibi.
    
16. The State then objected to the above evidence being adduced as it argued that the same amounted to an alibi and it had not received the necessary notice to allow them time to investigate the truth of these matters.
    
17. I have considered defence and prosecution's submissions and possessions in this matter. As a matter of practice, the defence should strictly comply with the alibi notice required. see State v Ram [2010] FJHC 451; HAC124.2008S (1 September 2010),]
    
18. The Accused was charged in 2007.
    
19. The Criminal Procedure Decree came into force on 1st February 2010 therefore the Defence should have complied with section 125 (2) of the Criminal procedure Decree No. 43 of 2009.
    
20. In the present case, the record indicates that Ms. Lagilevu had been appearing for the Accused since 3rd December 2010. She has been Counsel on record for the Accused since then. No formal notice of alibi was ever given to Prosecution well before the trial.
    

The law with relation to "Rules as to alibi" in the Magistrates Court is clearly set out in Section 125 (1) and (2)(b) of the Criminal Procedure Decree. The Section clearly states that, unless with the leave of the Court, the accused cannot adduce evidence in support of an alibi unless the accused person has given notice 21 days before the date set for trial of the matter.

21. Accordingly, the defense had ample time to comply with the alibi notice requirement. In my view the late alibi "notice" is incomprehensible and there is no any explanation from defense for the failure to give alibi notice.
    
22. In this matter the accused has been represented. In light of above discussed judgments, I do grant leave to the defense to adduce evidence in support of alibi of whose statement has been recorded by the prosecution and refuse leave to call other alibi witnesses to call or give alibi notice and I order so accordingly.
    

.........................
Lakshika Fernando
Resident Magistrate

On this 11th day of June 2013.