R v Ernesta & Ors (CO 22 of 2016) [2017] SCSC 838 (20 September 2017)

Burhan J

[1]       On the 5th of September 2017, on completion of a voire dire in regard to the admissibility of the statement under caution of the 1st accused, the prosecution attempted to tender a photocopy of the said statement. When brought to the notice of Learned Counsel for the defence, Learned Counsel objected to the production of the photocopy on the basis that the original had to be produced. Thereafter both counsel were given time to consider and tender submissions on the admissibility of the photocopy of the statement under caution of the 1st accused.

[2]       It was borne out in the evidence led thus far i.e. the evidence of agent Malvina of the NDEA that he had tendered the original statement to the prosecution i.e. the Attorney General’s Department. It appears from the submissions of learned Principle State Counsel Mr. Jayaraj Chinnasamy and it is accepted by the prosecution that the original statement under caution of the 1st accused was lost during the process of photocopying and distribution refer proceedings of 5th of September 2017 (1.45. p.m.).

[3]       The main question in issue is whether, in the absence of primary evidence i.e. the original document, secondary evidence i.e. a photocopy could be produced.

[4]       I have considered the submissions of both Learned Counsel. Learned Counsel for the prosecution contended that photocopies of original documents could be produced and referred to cases where the Courts of Seychelles have accepted photocopies as admissible. Learned Counsel for the accused submitted on the basis of sections 14 and 15 of the Evidence Act that only originals or certified true copies of originals were admissible. I am of the view that section 14 of the Evidence Act, referred to by Learned Counsel for the defence does not prohibit the production of documentary secondary evidence in the absence of primary evidence and parts of the section referred to are not relevant to criminal trials as per section 14 (3) of the Evidence Act.

[5]       I will next proceed to consider the relevant case law on this issue. In the case of R v Montenot 1881 MR 158, it was held that it is a primary rule of evidence that the primary evidence of each matter to be proved, that can be obtained, must be given at any trial. It was also held if the primary evidence is not available or cannot be at hand the next best may be allowed.

[6]       In general primary evidence in the case of documentary evidence would be the original document or an admission of its contents and it is imperative that if the original is available, it should be produced as this would be the best evidence. However in the case of Garton v Hunter [1969] 2 QB 37 Lord Denning M.R. stated “That old rule has gone by the board long ago….. Nowadays we do not confine ourselves to the best evidence”.

[7]       However if it (primary evidence) is not available due to it being lost, destroyed or when it is in the possession of the other party, secondary evidence which would be a copy of the document which includes a photocopy or oral evidence in regard to the contents of the document, can be produced or given. This was followed in the case of Kajala v Noble (1982) 75 Cr. App R. 149 where Ackner L.J. stated at pg 152 “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 document is available in one’s hand, one must produce it; nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to the weight, and not admissibility. Therefore we hold that photocopies are admissible.

[8]       In the case of R v Wayte 1983 76 Cr App R 100, the Court gave the following guidelines on the procedure to be adopted when it was sought to produce in evidence photostat copies of documents, in cases where admissibility was in question.

(a) Documents should not be handed to nor seen by the jury until questions of admissibility have been determined.

(b) Warning should be given to Counsel in advance so that they may have a fair chance of considering admissibility.

(c) Where the accused is unassisted by counsel the guidance of the Court should be sought before the document is put before the jury.

(d) On exceptional occasions there would be a trial within a trial on the issue of admissibility.

[9]       The Court similarly held that the photostat copies of documents were admissible as evidence where they were relevant and the original had been lost. The fact that the documents were merely copies went to the weight and not admissibility of the document. The genuineness or authenticity of the document (includes alleged fabrication of a document) is left to the Jury or Judge to decide at the end of the case on considering the evidence led.

[10]     In this instant case before me, Learned Counsel for the prosecution has already intimated to Court that the original document is not traceable and lost by the prosecution in the process of photocopying. Time was given to Learned Counsel for the defence to address the issue of admissibility of the photostat copy of the document. Already a voire dire has been held in regard to the voluntariness of the statement and now what exists is for Court to rule on the genuineness and authenticity of the document as it has been repudiated by the 1st accused. This, according to the Wayte (supra) case findings, set out in the preceding paragraph 9 herein, is a matter to be decided at the end of the case.

[11]     I therefore rule that as Learned Counsel for the prosecution has already stated in Court that the original document namely the original statement under caution of the 1st accused which was given to the prosecution according to the evidence of agent Malvina of the NDEA and is now not traceable, a photocopy of this document is admissible as evidence in the case against the 1st accused.

Signed, dated and delivered at Ile du Port on 20 September 2017


M Burhan

Judge of the Supreme Court

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