ICYMI – Part 1: Dip Chand and the Lata Sisters

Dip Chand was detained at Natabua Prison in Lautoka as he awaited trial in the High Court in Lautoka for three counts of murder.

On July 8, 2005, he told the medical orderly at the prison that he had been assaulted inside the Rakiraki Police Station Crime Office for six consecutive days.

The orderly noted that Chand complained of body pains, chest pain, back ache and a swollen left ear and that he was referred to the visiting medical officer for further medical examination and treatment.

After examining Chand, the visiting medical officer observed that there were no visible signs of any injury on the chest.

In its judgment on Chand’s application delivered on May 8, 2012, the Supreme Court said the next entry in the medical card was made by the medical orderly on July 14, 2005.

The medical orderly noted that Chand complained of shortness of breath and was referred to the Lautoka Hospital for further examination.

An X-ray of the chest taken at the hospital showed that Chand had three fractured ribs and he was examined by Dr Akhtar Ali, who admitted him to the Surgical Ward for observation for a few hours.

Chand was discharged at 2pm on the same day because his condition was stable and was rebooked to be seen at the clinic on July 29, 2009.

Another X-ray done on July 29 revealed that the fractures were healing without any complication and there was no need for another follow-up check.

The Supreme Court said there were two other entries pertaining to Chand’s medical condition dated August 11 and 13, 2005, which showed that he was treated at Lautoka Hospital for asthma and general body pains.

Chand’s lawyer submitted that the non-disclosure of the medical card kept by Natabua Prison and the summary of injuries suffered by Chand after the medical examination at Lautoka Hospital on July 14, 2005, deprived him of material evidence demonstrative of the involuntary nature of the confession made by him while he was in Police custody.

He also submitted that unless the petitioner (Chand) was permitted to adduce the medical card, a serious miscarriage of justice would result.

Strong objection by the State

The State strongly objected to the application by Chand to produce fresh evidence.

The State counsel submitted that since the medical card in question had been maintained by the medical orderly who accompanied Chand to the hospital, Chand knew or ought to have known of the existence of the card and could have produced it if so advised.

She further submitted that the voluntary nature of the confession made by Chand had in any event been established by the testimony of other independent witnesses and hence he suffered no prejudice by reason of the medical card having not been put before the court during the voir dire (trial within the trial).

The State counsel also submitted that the said card was not one of the documents in the possession of the State although it was one which Chand, with reasonable diligence, could have obtained and produced at the trial if it was material to his case.

She further submitted that no application was made by Chand at any time either in person or through counsel for the purpose of having it adduced in evidence.

Supreme Court on the application

A crucial consideration in deciding whether fresh evidence should be permitted in this case is that there is a strong likelihood that Chand was aware or should reasonably have been aware of the existence of the medical card sought to be produced as the card was maintained in relation to him.

The defence had produced at the trial the X-ray that was taken at Lautoka Hospital on July 14, 2005, the court said.

“However, even if the defence was not possessed of the said medical card, it is clear that the defence could have procured the same with reasonable diligence,” the Supreme Court said.

“Even if we consider that the petitioner was, for some reason, not in fact been aware of the existence of the medical card at the time of the voir dire or at the time the trial was heard before the assessors, the petitioner cannot deny that he was aware of the existence of the card a few months before he lodged his appeal to the Court of Appeal on 10th April 2007.”

The Supreme Court said it was important to note that Chand stated in his affidavit dated November 3, 2011, that on his instructions his lawyer sent a letter on July 4, 2006, to the officer-in-charge of the Natabua Prison requesting a copy of his medical card and certain other information.

Chand further stated in his affidavit that after receiving a copy of his medical card from Natabua Prison, his lawyer wrote to the Lautoka Hospital on July 17, 2006, requesting a copy of his medical report which he received on July 27.

“Having received a copy of the medical card from the Natabua Prison and other relevant information from the acting consultant surgeon of Lautoka Hospital at least by the end of July 2006, the petitioner (Chand) has failed to make an application to the Court of Appeal to adduce fresh evidence,” the Supreme Court said.

“The petitioner has not offered any explanation for not seeking permission of the Court of Appeal to lead fresh evidence.

“Having given the application of the petitioner to lead fresh evidence careful consideration, we are not persuaded that this is an appropriate case to permit the petitioner to adduce the medical card and details of his medical examination at the Lautoka Hospital on 14th July, 2005, as fresh evidence, and we accordingly reject the said application,” the Supreme Court said.

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