Dutt v The State [2022] FJCA 4; AAU079.2017 (3 March 2022)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO. AAU 079 OF 2017
(High Court No. HAC 243 of 2014)

BETWEEN:

DESHWAR KISHORE DUTT

Appellant

AND:

THE STATE

Respondent

Coram : Gamalath, JA
Prematilaka, JA
Bandara, JA

Counsel : Appellant in person

Ms S. Tivao for the Respondent

Date of Hearing : 9 February, 2022
Date of Judgment : 3 March, 2022

JUDGMENT

Gamalath, JA

Preliminary observations

[1] The appellant appearing in person made a lengthy submissions before us challenging his conviction. Since it is important for the course of justice the Court treated him with the degree of flexibility that it ought to have been granted to a person who is appearing in person. Out of abundance of caution, at the very out set I inquired from him if he wished to seek legal aid and his response was since he has no confidence in lawyers he wished to prosecute the appeal in person. He submitted to Court a full bundle of authorities, on their examination I find that some of them to be more relevant to the issues in hand than the others. He, exceeding the stipulated time limits allocated for oral submissions, carried on his submissions for almost two hours in which he twice stated unequivocally that despite the alleged oppression exerted on him in obtaining the statement the caution interview was not a fabrication.

[2] In essence the case against the appellant in the High Court of Fiji at Suva was that he was a participant in a joint enterprise in which they robbed one Kishore Kumar and Dharmendra Raj, on 20 July 2014, and the particulars of the offences are as follows;

FIRST COUNT

Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311(1)(a) of the Crimes Act No.44 of 2009.

Particulars of Offence

DESHWAR KISHORE DUTT with others on the 20^th day of July 2014 at Suva in the Central Division robbed KISHORE KUMAR and stole cash totaling $108,000.00, HP Brand Laptop valued at $1,800.00, assorted jewelleries valued at $5,000.00, Lumix brand camera valued at $600.00, Fuji Film brand camera valued at $300.00, Phone inbox valued at $449.00, a Nokia brand mobile phone valued at $49.00, a Casio brand wrist watch valued at $100.00, a Binoculars valued at $400.00, a rice cooker valued at $100.00, a sandwich maker valued at $50.00, a Toaster valued at $50.00, assorted clothes valued at $200.00 and vehicle registration number FK 102 valued at $45,000.00 all to the total value of $162,098.00 the properties of the said Kishore Kumar.

SECOND COUNT

Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311(1)(a) of the Crimes Act No.44 of 2009.

Particulars of Offence

DESHWAR KISHORE DUTT with others on the 20^th day of July 2014 at Suva in the Central Division robbed DHARMENDRA RAJ and stole cash totaling $3,600.00 and assorted clothes valued at $1650.00 all to the total value of $3,765.00 the properties of the said Dharmendra Raj.

[3] The trial against the appellant commenced on 19 April 2017 and proceeded on 20 April 2017, 21 April 2017, 24 April 2017, 25 April 2017 and on 26 April 2017. The peculiarity of the case was, that the appellant had been evading the due process and as borne out by the court record ever since 29 August 2016, the appellant had not attended court based on any valid excuse. Consequently, a bench warrant for his arrest was issued on 28 October 2016, and the trial against him, apparently trial in absentia, was fixed for 16 April 2017. In the meanwhile he was arrested by the police at Nadi and had been kept under custody since then. As fixed for trial, the hearing of the case commenced on 19 April 2017. However, prior to the delivery of the judgment, the appellant, once again absconded , and as such, acting under section 14(2)(b)(i) of the Constitution of Fiji 2013, the Court decided to proceed with the trial in absentia. The judgment was delivered accordingly and he was found guilty on both offences referred to above. The sentence of imprisonment of 15 years on each count to run concurrently was imposed and the sentence would start to operate from the date of appellant’s arrest.

The Facts

[4] The crime of house invasion in the night was committed by four masked men, armed with weapons. For want of evidence their arrest had not been possible. The case against appellant was different. His case proceeded on the sole incriminating evidence against him, the caution interview, which was held to be voluntary following a voir dire.

[5] The background to the crime as described by the victims in their testimonies were as such; On 20 July 2014, at around 2.10 am the witness Shaleshni Devi woke up to feed her 3 years old child when she was alarmed by some noise coming from downstairs of the house. Amongst those present were Kishore Kumar, the husband of Shaleshni, their three years old child, her brother Dharmendra Raj. The noise that came from down was as a result of the pry opening of the grill downstairs and the witness wanted to check what was happening downstairs. As she looked downstairs, a person forced himself into the house. He was cladded in black and wearing a hood to cover the face. Altogether four men had entered the house, all wearing masks and armed with pinch bars. The intruders, having entered the bedroom of the witness assaulted Kishore Kumar on his legs and the head with a pinch bar while one of the intruders held Shaleshni by her hair and repeatedly punched her in the face and when she fell on the ground, continuously kicked her in the body. Whilst the assault was continuing one of the intruders ransacked the room and collected the valuables to be taken away. One other intruder armed with a cane knife was standing by the door at the entrance to the room so as to protect the other intruders. The brother of the witness, who was sleeping in a different room was later found lying on the floor, in a pool of blood. As the intruders were leaving the house with the stolen valuables, they had dashed the 3 year old child against the wall. They fled away in the Pajero that belonged to the victims. All the inmates of the house were injured.

[6] As the robbers were wearing masks, none of the witnesses were able to see their faces.

[7] The above facts as deposed to in evidence by Shaleshni was corroborated by her husband, Kishore Kumar in giving evidence at the trial.

[8] Alan Nair, DC 2916 from the Transnational Crime, Nadi was lead in evidence by the prosecution to prove the caution statement of the appellant, and its voluntariness was accepted in the voire dire by the learned trial Judge. According to the Police Officer he did not find any injuries on the appellant, during the course of the recording of the confessions.

[9] At the end of the prosecution case the defence made submissions that there was no case to answer, however the learned trial Judge overruled the submission and called the defence.

[10] The Appellant elected to testify and accordingly he was arrested on 19 August 2014 and taken to Navua Police Station, where four police officers, after taking over his custody, proceeded with him in a jeep to Valelevu Police Station. He admitted having some old bruises on the face and the arms at the time of his arrest. On the way to Valelevu Police Station, he claimed to have been assaulted in the vehicle by the police officers who escorted him. The assault was severe and resulted in occasioning injuries to the face and his T-shirt was stained with blood. His request to allow to talk to his wife to make arrangement for legal assistance was denied. In essence, the appellant’s evidence was that in order to extract a confession, the police assaulted him on the face and knees. He alleged to have been kicked on the knees several times and they were “hard” kicks carried on by the officers wearing police boots.

[11] The Court had observed at this juncture that the witness was evasive in answering the cross- examination.

[12] Making his oral submissions the appellant claimed on 22 August 2014, on being produced before the Magistrate’s Court, he claimed to have told the Magistrate about the alleged severe police assault on him. In order to support his position he referred to the Magistrate’s notes in which he said there is reference to his claim. However, having perused the evidence at the trial I do not find any evidence to establish this fact and as such this claim is devoid of any evidential proof. Further the appellant in his submissions made a bold assertion that the notes of the Magistrate were not authentic and they had been fabricated. It is pertinent to note the observation made on the demeanor of the appellant as a witness by the learned trial Judge who was emphatic that the appellant was an evasive witness.

[13] The defence seeking support for the claim about the alleged forced confession, called to give evidence one Doctor Susana Suliana, who worked at Tamavua Health Centre. Having examined the appellant for alleged injuries said to have been caused during the course of the investigation, doctor submitted DW2, the medical report that contains the medical findings. On a perusal of DW2, one would wonder if the desired objective of calling the doctor in evidence has rendered any support to the assertion that the appellant sustained the injuries that he claimed to have received at the hands of the police investigators.

[14] If I may recall, it was the evidence of the appellant that he was repeatedly assaulted by two or three police officers who conveyed him in a jeep, resulted in sustaining injuries to the face, the knees and the other areas of his body. The evidence of the Doctor states that “if the accused was kicked 5 to 6 times on the knees with a standard police boot, I expect to see bruises and scratches. I expect to see bruises, abrasions and as a result it would be swollen and he would be in pain. It is possible to have a fracture where he was kicked i.e. both knees, if he was kicked hard 5 to 6 times by a police boot. I did not find any swelling or fracture on the accused knee. I did not find his mouth bleeding. I did not find his arm swollen. Refer to D(10). Accused told me in D(10) of the report that he was only assaulted at Navua Police Station and nowhere else”.

[15] Referring to the evidence of the appellant, one may recall him stating that, he was assaulted by the police whilst being conveyed to Valelevu Police Station. His vivid description of the assault, that “he was assaulted on the “face and knees”, he was slapped five times i.e. one landed on the nose that was described as a hard slap; punched on the right knee three to four times, and they were hard punches; he was punched five times on the ribs, but they landed on his elbow; and the assault continued at Valelevu Police Station, in a room where there were six officers; that he was slapped on the side of the head and back and one landed on his eye; that he was kicked on the right leg and they were hand kicks, and further, there were hard kicks on the right knee on 19 August 2014,” all that description does not seem to be compatible with the evidence of the doctor and as such the desired objective of gaining support for his testimony through the Doctor does not seem to have been achieved by the appellant.

[16] Shivani Vikashni, the wife of the appellant testifying stated that when she saw her husband at Nasinu Police Station, she had observed multiple injuries on him of which she had taken photographs to be sent to the appellant’s mother living in the USA. DW3, the exhibits of the photographs, were taken by the use of a mobile phone and answering the cross-examination she stated that she was unable to be sure as to when the photos were taken. Besides, there had been no endeavor on the part of the defence to draw the attention of the Doctor to the injuries alleged to have been seen by the wife of the appellant at the Nasinu Police Station and it is relevant to recall that the evidence of the appellant was that the assaults took place after the police team left Navua Police Station and on the way to Valelevu Police Station and nothing is mentioned about an assault at Nasinu Police Station.

[17] The trial judge’s observation on record that the appellant was “an evasive witness” has a significant importance for it is directly relevant to an observation on the demeanor of a witness, one premise upon which the trial judges are expected to arrive at a conclusion on the testimonial trust worthiness of a witness.

The Verdict

[18] The assessors were unanimous that the appellant was guilty, as charged on both counts. Sentence was to be pronounced on 28 April 2017.

Absentia

[19] The appellant in the meanwhile had been absconding since 29 August 2016 to 19 April 2017 and on 28 April 2017, he was sentenced to imprisonment.

Voire Dire Inquiry and the Ruling

[20] As the case for the prosecution rests solely on the evidence of the incriminating material as revealed through the confession of the appellant, the accuracy of the determination of its admission in evidence is pivotal to the sustainability of the conviction.

[21] On behalf of the appellant, several objections were raised to be considered by the learned trial Judge in determining the voluntariness of the confession. They were as follows;

“1. That before the commencement of the Accused caution interview on 19/8/14 he was assaulted by D/Cpl 2561 Vinod, Pita Matairavula, Viliame Saumaisue, Cpl. Senitiki and the Investigating Officer of the case.

2. That despite the Accused informing the interviewing officer he wanted to see his wife, he was denied access to see and/or communicate with her during and after the caution interview, which was in breach of his rights pursuant to section 13(1)(k)(i) of the Fiji Constitution.
   
3. The Valelevu Police failed to take the Accused for a medical check while he was in their custody from 20/8/14. Only when the accused was transported to the 8 Miles Police Mobile Police Station did Roy Senibici direct that the accused be taken for a medical check up at Makoi Health Center. That the accused rights pursuant to section 13(1)(d) were breached when the Valelevu Police failed to take him for medical treatment.
   
4. That when the accused first appeared in the Valelevu Magistrates Court on 22/8/14 he informed the Resident Magistrate about the Police brutality and assault to compel him to sign the alleged confession.
   
5. That as such, the accused requires;

(a) Navua Police Station diary for the period 18-19 August 2014 where he was detained upon arrest;

(b) The Valellevu Station Diary for the period 19/8/14 to 23/8/14 and;

(c) 8 Miles Police Mobile Station diary for the period 20/8/14 to 22/8/14.”

On 19 of April 2017 the voire dire inquiry commenced in which several police officers testified. Allan Nair, DC 2916 of Transnational Crime Unit, Nadi, recorded the statement of the appellant. He maintained that he did not observe any fresh injuries on the appellant.

[22] The witness stated that he observed no fresh injuries on the appellant and further about the photographs of the injuries of the appellant said to have been taken by the appellant’s wife, the witness stated he had no knowledge as to when the said photographs were taken.

[23] The arresting officer Leone Saladuadua testified to the facts relating to the arrest of the appellant and after having escorted him to Navua Police Station, where the appellant stayed for 10 to 15 minutes to be conveyed to Valelevu Police Station. No injuries were observed on the appellant.

[24] The appellant testified to the nature of the assaults at the hands of the police and described how he was assaulted on the knees and face by several police officers. The learned trial Judge observed that the appellant was an evasive witness.

[25] The appellant maintained that on being produced before Nasinu Magistrate’s Court, he lodged a complaint to the learned Magistrate about the assault on him by the police. However he admitted that the Magistrate’s Court record has no mentioning of it.

[26] The appellant’s wife Shivani Vikashni, also testified and stated how she observed the appellant with a broken leg, of which, one may recall, the Doctor who examined the appellant had made no findings in the medico legal report.

[27] The ruling of the learned trial Judge on the voire dire inquiry had been under the guiding principles of law that a Judge should be exercising the judicial power. It is clearly manifested by the reference in the ruling (paragraph 4) to wiz; Ganga Ram & Sulu Charan v Regina Criminal Appeal;

“4. The law in this area is well settled. On 13^th July 1984, the Fiji Court of Appeal in Ganga Ram & Shiu Charan v Reginam, Criminal Appeal No. 46 of 1983, said the following, “...it will be remembered that there are two matter of which requires consideration in this area. First, it must be established affirmatively by the crown beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as the use of forces, threats of prejudice or inducement by offer of some advantage – what has been picturesquely described as the ‘flattery of hope or the tyranny of fear’ Ibrahim v. R. (1941) AC 599, DPP v Ping Lin (1976) AC 574. Secondly, even if such voluntariness is established there is also need to consider whether the more general ground of unfairness exists in the way in which the police behaved, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. Regina v Sang [1979] UKHL 3; (1980) AC 402, 436 @ C – E. This is a matter of overriding discretion and one cannot specifically categorize the matters which might be taken into account...”

The learned trial Judge, with reasons decided that the caution statement was voluntary, and as such should be admitted in evidence against its maker.

[28] The salient features of the confession are as follows;

(1) that since April 2012 he was in prison.

(2) that he along with another inmate escaped the police custody while locked up in the cell at Nadi Police station.

(3) that after his escape he came to Suva in a getaway private car.

(4) that the getaway car was arranged by another inmate called Sailasa

(5) that from there he went to Navua in a hired private car and stayed in Navua for 3 days.

(6) that from there he met another jail inmate called Eroni who he met at Lautoka Prison.

(7) that Eroni told him that he has a job for him and the details of which were to be shared with him later.

(8) that on Saturday the 19.7.2014 he met Eroni again and around 8p.m. they left for Maqbool Road.

(9) that they were all wearing black colour clothes

(10) that at that place Eroni called and got down one Vilikesa alias Cash

(11) that Cash was also wearing black

(12) that Eroni took mask, hand gloves and pinch bar which was inside a

potato bag.

(13) that we were going to break into a house at Maqbool Road off M.Y.Hanif Road.

(14) that while waiting at the roundabout at M .Y. Hanif Road, Erami Ceinaturga and another i-taukei boy came through the main road and met us. I know Erami as I met him in prison. All were wearing black clothes and Erami was carrying a black bag with pinch bar inside.

(15) that they spent almost 5 hours at the roundabout where Erami told them each ones part.

(16) that Eroni told him to be the driver of the getaway vehicle. They were to break into the house and to enter into the house.

(17) that after 2.00 a.m. Eroni told them it was the right time to enter the

house.

Accordingly, the appellant had waited outside of the house of Kishore Kumar the victim, when one of the intruders gave him the key to the Mitsubishi Pajero parked in the compound of the victims. After the incident they fled away in the Pajero that was abandoned later.

[29] The confession of the appellant continued with vivid description of the crime they were all involved in.

[30] The learned trial Judge had given sufficient reasons to hold that the confession is voluntary.

[31] Taken into consideration of all the material facts I find that the learned trial judge was correct in holding that the appellant is guilty.

[32] In the circumstances the appeal is dismissed and conviction affirmed.

Prematilaka, JA

[33] I have read the draft judgment of Gamalath, JA and agree that the appeal should be dismissed.

Bandara, JA

[34] I have read the draft judgment of Gamalath, JA and agree with his reasoning and conclusions.

Orders of the Court

1. Appeal dismissed.
2. Conviction affirmed.
   

Hon. Justice S. Gamalath

JUSTICE OF APPEAL

Hon. Justice C. Prematilaka

JUSTICE OF APPEAL

Hon. Justice W. Bandara

JUSTICE OF APPEAL