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Reliability of Present Sense Impression Hearsay Evidence.

The Law Commission’s Report on Expert Evidence in Criminal Proceedings.

Liability for the Malicious Institution of Civil Proceedings.

Jurisdiction of Magistrates in Fiji

In Fiji, Magistrates are empowered to exercise criminal jurisdiction under the Magistrates Courts Act, Criminal Procedure Code and any other law in force. Under chapter 4 of the Fiji Constitution, the fundamental rights and freedoms stipulated is binding upon every branches of the State and the persons carrying out the function of a public officer as stated under section 21(1)(a)(b) of the Constitution.

On the facts here, there are certain evidentiary issues that arose out of the proceedings before the Magistrate court, which were recognized by the Court of Appeal, leading to acquittal of the accused person.

Right to fair hearing within a reasonable time

The constitution entitles every person who is charged with an offence with the right to fair trial within a reasonable time before an impartial court of law as stated under section 29(1) (2) (3) of the Constitution. In order to determine whether the delay in conducting a fair trial is reasonable or unreasonable, the court shall consider the factors as was held in Apatia Seru & Anthony Stevens v The State Crim App No AAU0041 of 1999S. Such factors include length of the delay, actions of state of defendant, reasons for delay, restrictions on institutional resources and prejudice to the defendant (Corrin 2017).

In the given case, the accused person was detained in custody for 10 months before he was convicted of the offence. If the conditions for delay is to be considered it can be stated that the delay was unreasonable as the accused could have been granted bail.

According to section 28(1) (a) of the Constitution, every person who is charged with an offence has the right to be considered as innocent until the person is proved to be guilty according to the law. This principle termed as ‘presumption of innocence’ is a fundament principle in criminal law (Wigmore 2016). In Azzopardi v R [2001] 4 LRC 385 (Australia) and in State v Johnny Albert Stephen [2010] HAC 088 before the High Court of Fiji, it was held that the prosecution must bear the onus of proof to establish the guilt of the defendant beyond any reasonable doubt.

As per the facts here, the court acted inconsistently with section 28(1) of the Constitution while the accused was ordered to be kept in the custody on the ground that he is guilty until his innocence is proved in the court. The court erred in complying with the fundamental principle of ‘presumption of innocence’ as was observed in Azzopadi and Johnny’s cases.

Right to Fair Hearing within a Reasonable Time

Right to Counsel

As per section 28 [(1) (c) (d)] of the Constitution, every person charged with an offence must be provided with adequate facilities and time to prepare a defense. The person is also entitled to the right to defend herself or himself either personally or through legal practitioner of his or her choice. The person shall also be entitled to obtain the services of a legal practitioner under the scheme for a legal aid (Gardner and Anderson 2015). This right is essential to ensure that person charged with an offence is entitled to a fair hearing. In  Suren Singh & Ors v The State Suva High Court Cr. App. No 79 of 2000, it was held that a defendant must be informed of his rights under section 28 [(1)(d)] and section [29(1)] of the Fiji Constitution. This right includes the right of the defendant to have legal representation to understand the charges that have been imposed against him or her and to be able to defend her of him against such charges.

Further, as per section [28(1) (f)] of the Constitution, every person who is charged with an offence must not be compelled to give witness against herself or himself. In criminal cases, the prosecution is responsible to establish the charges against the defendant and the defense is entitled to provide evidence in her or his defense after the prosecution has completed presenting his or her case. However, it is not mandatory for the defendant to do the same. Under such circumstances, the court cannot infer anything from the choice of the defendant not to give evidence and shall base its entire case on the evidences adduced by the prosecution to determine whether the defendant has met the burden and standard of proof requirement (Edmond and Roberts 2017).  

In the given case, Matty was deprived of his right to counsel while he was held in custody and neither he was given the opportunity to communicate with any legal practitioner of his  choice which results in violation of the Constitutional provision under section [28(1) (c) and (d)]. Further, Matty admitted his offence without being aware of the fact that he has a right to remain silent and right to obtain legal advice or legal aids regarding his charge alleged against him.

Criminal Procedure Decree 2010

According to section [9 (3) {b} (ii), {c}] of the Criminal Procedure Decree 2010, any person detained in custody is entitled to a legal practitioner and is entitled to all reasonable facilities that is required to consult with a legal practitioner of the choice of such detained person.

Presumption of Innocence

Further, section [13(1)] of the Criminal Procedure Decree stipulates the rights of the arrested and detained persons. The provision stipulates that every person who is arrested or detained must be informed about the right to remain silent and the consequences of not remaining silence. The person shall also be informed about his rights to communicate with a legal practitioner of her or his choice in private in the pace of detention. In case the person does not have adequate means to engage a legal practitioner and it is required in the interest of justice, the person shall be entitled to legal aid (LaFave 2017). As per section [13(j)] of the Criminal Procedure Decree, the person detained or arrested must be entitled to be kept in a condition that is consistent with human dignity. Such condition must include adequate accommodation, medical treatment and nutrition as was held in State v Lole Vulcae and Others Criminal Case [2007] HAC 120. 

On the facts here, Matty was detained in custody but was deprived of his right to counsel or a relative and was denied meals, which amounts to a violation of the Criminal Procedure Decree provisions stipulated under section [9] and [13]. The right of an arrestee and detainee to be kept under human condition at the expense of the state has been upheld in the Lole Vulcae’s case as well.

Admissibility of Evidence

In regards to the evidence that is produced before the court, it includes documentary evidence, real evidences and oral evidences. Documentary evidences include tape recordings, photographs; public or private documents etc and are merely representation of facts that are subjected to the determination of the court regarding its admissibility. Real evidence includes material objects or items that are produced at trial and include behavior, physical appearances and attitude of a person, etc (Graham 2017.).

When such real or documentary evidence is introduced in the court, it is considered as an exhibit and the Court is required to consider whether the party tendering such exhibit has seen the item or identify the item to the court, etc (Cohen 2016). In regards to the hearsay rule, any evidence given shall not be considered as hearsay evidence and shall be admissible if the witness who provides such evidence had personal knowledge of the evidence stipulated in the statement upon which the prosecution relies stating that it contains the truth.

In regards to the admissibility of evidence in this case, the statement made by Usman shall be considered as hearsay evidence, which is non-admissible in the court. This is because Usman did not have personal knowledge about the matter in issue that is; she did not witness Matty committing the theft and was informed about the fact by his husband Rattan.

Right to Counsel

The only evidence that may be admissible in this case is the real and documentary evidence. In this case, the real or documentary evidence shall include the camera footage that recorded the movements in adjacent side of room from where the ring disappeared. The camera footage recorded vaguely a white man with afro black hair entering into the room, remained near the cabinet, and then departed.

However, as per the witness statement made by Rattan he stated he saw Matty a blonde French man to enter into the room and departed thereafter. This may be admissible as direct evidence as Rattan was personally present and narrated what he himself saw. However, it shall depend upon the court to determine whether the evidence amounts to direct evidence or circumstantial evidence that establishes offence of theft committed by Matty.

In regards to the bail application made by any accused person, bail shall be granted to any person who has been charged with an offence or has been arrested for any offence under section 13(1) of the Bail Act 2002. Under section 17(2) of the Bail Act 2002, the court must take into account whether the defendant will appear before the court if bail is granted to him or her. According to section 17(1) of the Act, the court must also consider the amount of time the accused person have to spend in custody if bail is not granted or whether such refusal will not serve the interests of the accused person. The court must also consider whether the grant of bail would be detrimental to the public interest or to the safety of the community as set out in section 19(1) of the Act. 

As per the facts here, Matty was the accused person who has been charged with an offence and is legally entitled to bail as stipulated under section 13(1) of the Bail Act 2002. As stated that while determining the eligibility of granting bail to an accused person, the court shall consider certain essential conditions such as whether the accused shall appear before the court after granting bail. The other conditions included the length of time that the accused person will have to spend in the custody and the outcome of bail on the society and the public (Todd 2017). Given the facts of the case, it would not have affected the safety of the public neither the security of the society. Further, since bail was not granted to Matty, he had to spend 10 months in custody, which was against the interest of Matty and is contrary to the interest of justice as well as his offence was yet to be established and until guilt of an accused person is established, the person is presumed to be innocent.

Criminal Procedure Decree 2010

In order to succeed in a claim for malicious prosecution, the plaintiff is required to prove the following facts:

  1. the defendant was actively fundamental while instituting criminal proceeding against the plaintiff;
  2. the defendant acted without probable and reasonable cause;
  3. the proceedings were decided in favor of the plaintiff;
  4. the defendant maintained or initiated the legal proceedings maliciously;
  5. the plaintiff has suffered damage in respect of his reputation, property or person;

As per the given facts, in order to proceed with a claim for malicious prosecution, the plaintiff that is, Matty in this given case, must establish the above-mentioned conditions.

In order to establish Matty may argue that the defendant or the state has held him in custody for 12 hours and deprived him of his right to counsel, which is a constitutional right. Being a detainee, he was not only deprived of communicating with a legal counsel, but was also denied to meet his relatives amounting to the violation of section [9] of the Criminal Procedure Decree of Fiji.

Further, Matty/Plaintiff was denied meals during his detention period prior to his interview, which also violated section [13] of the criminal procedure decree that requires detainees and arrestees to be kept under human conditions which includes meals at the state expenses.

Furthermore, Matty was denied bail even when he was a person charged with an offence who is entitled to be released on bail. This amounts to the violation of the provisions stipulated under section [17(1)] of the Bail Act 2002. In addition, the court denied bail on the ground that Matty was guilty until his innocence is proved which is contrary to the fundamental principle of law ‘presumption of innocence’ that states that a person is innocent until his guilt is established. He was held in custody for 10 months without any reasonable or probable cause.

Defendant was fundamental in institution the criminal proceedings

The defendant initiated the criminal proceedings against Matty and charged him with the offence of theft.

Proceedings were decided in favor of plaintiff

Although the lower court held plaintiff as convicted of offense of theft but High Court of Pacifika acquitted the plaintiff.

The defendant maintained legal proceedings maliciously

The defendant denied all the fundamental rights and rights entitled to an arrestee or detainee during the legal proceedings and denied bail on unreasonable grounds, which amounts to illegal proceedings.

Plaintiff suffered reputational damage as he was falsely convicted for the offence of theft but was acquitted by the High Court. The police could not even recover the golden ring from Matty for which he was charged with theft at the first place.

The real and documentary evidence included the camera footage, which vaguely showed a afro-black haired person entering into the room whereas in reality, Matty was a French man with blonde hair. Further, the witness statement provided by Rattan could be false as he recently had a row over cutting of guava tree branch that was hanging over Frances’s compound. Furthermore, the witness evidence provided by Usman could not be admissible being hearsay evidence and that she was not present to witness the matter in issue but has only heard from her husband.

Admissibility of Evidence

The legal as well as evidentiary burden and standard of proof is upon the prosecution to establish that Matty has committed the offense of theft beyond any reasonable doubt. The prosecution failed to establish his guilt as the evidences adduced could not establish the charge against Matty.

The advocate for accused persons or persons charged with an offence is obligated to inform the person about the nature of the offence and the consequence of such offense, if it is proved. The attorney shall provide the accused person with all necessary legal advice that might assist him in obtaining the legal proceedings in his or her favor (Myers 2017).

The objective of cross-examination is to examine the evidence provided by the witness whether such witness is a prosecution witness or a witness for the defendant (Spencer 2014). While the prosecution cross-examines a witness of the defense even if it is the accused person itself, the attorney for the defense must ensure that the defendant do not assert any statement that may be used against him or her to establish the charge of offence.

The defense attorney shall ensure that the witness or the accused person is not harassed or bullied by the prosecution counsel. The defense attorney must ensure that the attorney for the prosecution does not compel or ask questions that are irrelevant to the case and shall cause reputational damage to the accused person or the witness. It is essential that the cross-examination take place with respect to the relevant case of the defendant (Lau 2016).

As per the facts here, Sione being the attorney of Matty must provide sufficient information about the charge of offence for which he had been held in custody. She must inform him about is right to remain silent and the consequences of remaining silent. Sione is obligated to inform him about the procedure of cross-examination and the statements to be made during the same, which might prevent him from exposing his weakness and be used against him in the court. Sione must also ensure that the prosecution is not bullying or harassing Matty and that the questions asked are related to the relevant case of the defendant.

According to section 135 CPC, the court may summon any person as a witness or examine any person in attendance during any stage of trial. The Court may remand a witness if such witness refuses to answer any question or refuses to take an oath (Posner 2015). Further, if the examination of such witness is essential for administering justice and that the attendance of such witness can be obtained without unreasonable delay, inconvenience and expense, a commission may be issued to the Magistrate of local jurisdiction to take the evidence of such witness under section 139 CPC.

Bail Application

If the court is satisfied that the evidence provided by the complainant has not been supported by any other witness but is sufficient enough to establish the offence with which the defendant has been charged, the defendant may be convicted based on the sole evidence of the complainant. This principle was held in Mark Mutch v State FJCA Crim App AAU0060/99.

As per the facts of the case, Andrew refused to tell the truth due to certain domestic issues with Frances during the course of the trial in lower court. Under such circumstances, the prosecution had to rely on the evidence given by Frances and on other witnesses for establishing the charge against Matty. As per section 135 CPC, the magistrate may remand a witness if such witness refuses to answer questions even after taking oath to answer questions truthfully.

Here, Andrew refused to answer during the course of the trial, which implies that he had already sworn in before the court, hence, he might be taken in remand for not answering the questions. Further, if the court is satisfied from the evidence given by Frances that Matty has committed the offence, corroboration of such evidence provided by the complainant/Frances, the court may convict Matty based on such evidence as was held in Mark Mutch’s case.

References

Apatia Seru & Anthony Stevens v The State Crim App No AAU0041 of 1999S

Azzopardi v R [2001] 4 LRC 385

Bail Act 2002

Cohen, J.A., 2016. The Tort Report.

Constitution of the Republic of Fiji

Corrin, J., 2017. Searching for appropriate criminal evidence laws in the South Pacific. The International Journal of Evidence & Proof, 21(3), pp.230-241.

Cottrell, S., 2017. Critical thinking skills. Macmillan Education.

Criminal Procedure Decree 2009

Edmond, G. and Roberts, A., 2017. The Law Commission’s Report on Expert Evidence in Criminal Proceedings. Expert Evidence and Scientific Proof in Criminal Trials.

Gardner, T.J. and Anderson, T.M., 2015. Criminal evidence: Principles and cases. Nelson Education.

Graham, J.C., 2017. Malicious Prosecution and Abuse of Process. Florida Torts, 1.

Herring, J., 2014. Criminal law: text, cases, and materials. Oxford University Press, USA.

Kadish, S.H., Schulhofer, S.J. and Barkow, R.E., 2016. Criminal law and its processes: cases and materials. Wolters Kluwer Law & Business.

LaFave, W.R., 2017. Modern Criminal Law: cases, comments and questions. West Academic Publishing.

Lau, T.T., 2016. Reliability of Present Sense Impression Hearsay Evidence. Gonz. L. Rev., 52, p.175.

Mark Mutch v State FJCA Crim App AAU0060/99

Myers, J.E., 2017. Cross-examination: A defense. Psychology, Public Policy, and Law, 23(4), p.472.

Posner, R.A., 2015. On Hearsay. Fordham L. Rev., 84, p.1465.

Spencer, J.R., 2014. Hearsay evidence in criminal proceedings. Bloomsbury Publishing.

State v Johnny Albert Stephen [2010] HAC 088

State v Lole Vulcae and Others Criminal Case [2007] HAC 120. 

Suren Singh & Ors v The State Suva High Court Cr. App. No 79 of 2000

Todd, S., 2017. Liability for the Malicious Institution of Civil Proceedings. J. Int'l & Comp. L., 4, p.123.

Wigmore, J.H., 2016. Wigmore on evidence. Wolters Kluwer.

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