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State v Sivaro [2016] FJMC 208; Criminal Case 385.2011 (26 October 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 385/2011

STATE

V

ILIESA SIVARO

For the Prosecution : Cpl Shaw

The Accused : In person

Date of Hearing : 24^th of October 2016

Date of Ruling : 26^th of October 2016

RULING ON ADMISIBILITY OF PHOTOCOPY

1. The accused is charged one count of Receiving contrary to section 306 of the Crimes Decree No 44 of 2009.
2. During the voir-dire hearing to decide about the admissibility of his confession, it was shown that the original caution statement is no longer available and only a photocopy is in the custody of the interviewing officer.
3. As the accused was objecting I conducted a separate hearing to decide if this photocopy can be accepted.
4. The applicable law was discussed in Regina v Vincent Lobendahn [1972], Fiji Law Reports, Volume 18 where Goudie J held that the following criteria need to be satisfied to accept the photocopy as an evidence :
   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.
   100. There must be clear and reliable evidence to establish that the copy which the party wishes to tender as secondary evidence is a true 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 is no longer in existence 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 not 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."
5. During the hearing the prosecution called only the interviewing officer to explain about the missing original. He said the original was exhibited in 2011 and they managed to locate a photocopy which was made by the crime writer in the present of the witness. He also identified the copy as a true and faithful reproduction of the original. The accused did not cross-examine the witness.
6. Having considered the evidence of the above witness I find there is no evidence to show what really happened to the original statement. Further apart from mentioning about a search was carried out; there is no evidence to show how this was conducted by the witness and what effort he has taken to locate the missing document.
7. Hence in my view the evidence led in the inquiry is not sufficient to satisfy ‘due and diligent search’ under the above guidelines.
8. Accordingly I find the photocopy of the caution statement is not admissible for this case.

Shageeth Somaratne

Resident Magistrate