State v Kumar [1992] FJHC 41; Hac0002d.92b (24 September 1992)

IN THE HIGH COURT OF FIJI
(AT LABASA)
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0002/1992

BETWEEN:

STATE

v

RAMENDRA SEN KUMAR

Mr. R. Perera for the State
Mr. A. Sen for the Accused

Date of Hearing: 24th September, 1992
Date of Delivery: 24th September, 1992

RULING

The defence sought to adduce evidence on the Voir Dire of two witnesses who were previously charged with the accused but against whom the State filed Nolle Prosequis.

On the Voir Dire the accused alleges that his confession was forced from him by the Police in that prior to the record of the interview, and that at the time of the record of the interview he was assaulted by being punched and having raw chilli rubbed into his eyes, mouth and onto his genitals.

He alleges that this was done on two occasions over a 24 hour period whilst he was in the company of Detective Cpl. Vijay Kumar, Constable Anirudh Prasad, Constable Ramen and a Fijian Police Officer.

The evidence which the Defence seek to adduce from the two former co-accused is that approximately two weeks after the accused gave his record of interview they, when giving their records of interview were assaulted in a similar manner but by different Police Officers.

The Defence applies to adduce this evidence as Similar Fact evidence to prove that the Police Officers who interviewed the accused assaulted him in a similar manner therefore rendering his confession involuntary and thus inadmissible.

I am not satisfied that such evidence of the two former accused is in fact Similar Fact evidence.

The evidence of these two witnesses relates to events which took place two weeks after accused's record of the interview and involve different Police Officers with the exception that the witnessing Officer for the accused's record of interview was the witnessing officer for one of the other two former accused.

The basic test for the admissibility of evidence at trial is relevance. Is the evidence of what some Police Officers (with the exception of Constable Prasad) did to two other people relevant to prove that the accused was assaulted in a similar manner by other Police Officers some two weeks before-hand? In short, I think not. With the exception of Constable Prasad the Police Officers on the three occasions of record of interview were different, Constable Prasad witnessing only the accused's record of interview and one of the other former accused.

However, if on the other hand, the evidence of the two former accused could be said to be similar fact evidence I am of the opinion that it should be excluded in that:

(a) The possibility and probability of collusion between the two former accused and the deceased in this case is so great as to render their evidence so dangerously unreliable that its weight would be valueless. The two former accused had been in prison together with the accused from June 199l until the commencement of this trial on the 14th September l992, a period of some l5 months. They were all charged with the same offence and faced the same consequences. I am of the opinion that these factors would greatly enhance the probability, chance and opportunity for collusion between them.

In DIRECTOR OF PUBLIC PROSECUTIONS v BOARDMAN (l975) A.C. 421 Lord Wilberforce considered that it would be right for a trial Judge to exclude evidence of this nature if there was a possibility of collaboration between the witnesses. Also, Lord Cross in the same case expressed a similar opinion stating that if there was any real chance of collusion in circumstances such as exist in this instance the evidence ought to be excluded by a trial Judge.

I agree that the views of Lords Wilberforce and Cross in this regard and am of the opinion that the possibility of collusion between the witnesses here is so great as to render their evidence inadmissible.

(b) Additionally, for Similar Fact evidence to be admissible it must be shown to be positively probative of the particular accused's guilt. I quote from the decision of Scarman L J in SCARROTT (l978) Q.B. 1016 at pp. 1021-22 where His Lordship said:

"...positive probative value is what the law requires, if Similar Fact evidence is to be admissible. Such probative value is not provided by the mere repetition of Similar Facts. There has to be some feature or features in the evidence sought to be adduced which provides a link - an underlying link as it has been called in some of the cases. The existence of such a link is not to be inferred from mere similarity of facts which are themselves so common place that they can provide no sure ground for saying that they point to the commission by the accused of the offence under consideration."

Further, in LUNT (l986) 85 Cr.App.R. 241 it was held that Similar Fact evidence is admissible if it is positively probative in relation to the crime charged. In order to decide whether the evidence is positively probative with regard to the crime charged it is first necessary to identify the issue to which the evidence is directed. Once the issue has been identified the question will be: Will the Similar Fact evidence be positively probative in the sense of assisting the Jury to reach a conclusion on that issue on same ground other than the accused's bad character or disposition to commit the sort of crime with which he is charged? If the evidence of Similar Fact will not assist the Jury to this end it is irrelevant and inadmissible. (see p.244-5)

Put simply, to be admissible, the evidence of what Police Officers did to the two former accused some two weeks after the accused's record of interview was conducted, would need to positively show and be probative of the fact that other, or different Police Officers did assault the accused in the manner alleged.

There is no nexus or link in the chain of reasoning here to infer guilt against the Police Officers who interviewed the accused. The players are different on the three separate occasions of interview with the exception of only Constable Prasad being present on two of the three occasions and then with different Investigating Officers.

For the foregoing reasons I am of the opinion that the evidence of the two former accused sought to be adduced by the Defence on the Voir Dire would provide no assistance to the Tribunal of fact in this regard, thus, it is irrelevant and therefore inadmissible.

David E. Ashton-Lewis
Judge

HAC0002D.92B