State v Narayan [1993] FJHC 25; Hac0011r.91s (10 March 1993)

IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

CRIMINAL CASE NO. 11 OF 1991

THE STATE

v.

BIRENDRA NARAYAN
s/o Deo Narayan

LARCENY BY SERVANT: Contrary to Section 274(a)(i)
of the Penal Code Cap. 17

Mr. I. Wickramanayake for the State
Mr. S.M. Koya for the Accused

RULING

In this trial within a trial the defence challenges the admissibility of a caution interview record and charge statement on the following 4 principal grounds as outlined by learned counsel for the accused in making his objection at the outset. They are:

(1) Assault;

(2) Threats to kill;

(3) Long hours of detention without charge; and

(4) Inducement.

The prosecution in seeking to discharge the onus of proof cast upon it to establish the voluntariness of the alleged admissions called both Sgt. Adip Singh the interviewing officer and PC Rakesh Kumar the charging officer. Also produced were the challenged records of the caution interview (Ex.10) and the charge statement (Ex.11). The accused for his part gave sworn evidence and called a witness Virend Kumar in support of his complaint of assault and threats.

Much of the chronology of events in this fairly short trial within a trial is undisputed and may be conveniently set out as follows:

At about 10.00 a.m. on the morning of Monday 21.5.90 the accused who was employed as an accounts clerk with Suncourt Hardware received a phone call at his office from Sgt. Adip requesting his attendance at the Central Police Station. He was also asked to take along his passbook as there had been an allegation that a sum of money had been stolen from out of his account. The accused obliged and went to the Central Police Station where he was escorted to the General Crime Office.

At the General Crime Office he was questioned by Sgt. Adip about the various entries in his passbook and in particular about the source of the funds. He gave the officer some information which when verified proved to be false. On being questioned further the accused is alleged to have verbally admitted stealing the money from his employer.

The accused's employer was advised of the accused's alleged admission and two representatives of his employer came to the Central Police Station. At this time no complaint had been lodged by the accused's employers concerning any missing company money or a theft by any of their employees.

At about 8.00 p.m. on the evening of 21.5.90 the accused in the company of several police officers and his employer's two representatives left out to the Company premises at Nabua.

At the company premises the accused located various company accounts and records and explained how he had carried out the fraud. It was then confirmed by the company representatives that an amount slightly in excess of $40,000 had been defalcated by the accused.

The accused was later taken back to the Central Police Station in the early hours of the morning of the next day 22.5.90 where his caution interview was recorded by Sgt. Adip between the hours of 2.05 a.m. and 6.10 a.m.

It was not until approximately 11.00 a.m. (i.e. 5 hours after the accused's interview was recorded) that the accused was charged by Constable Rakesh Kumar for an offence of Larceny by Servant and his charge statement recorded.

A further 5 hours elapsed before the accused was released on bail to appear in the Magistrate Court.

From the above it is immediately clear that the accused spent almost 30 hours either at the Central Police Station or in the company of police officers. It is also clear that during that entire time he would have had very little sleep (if any) and certainly no opportunity to shower or refresh himself. The accused also claimed that he was not offered a meal during the entire period.

I turn next to the specific allegations made by the accused but before doing so I remind myself that the burden of proving the voluntariness of the accused's interview record and charge statement rests fairly and squarely on the prosecution to satisfy the court beyond all reasonable doubt.

I also bear in mind the salutary remarks of Lord Halsham L.C. when he said in Wong Kam Ming v. R. (1980) A.C. 247 (P.C.) at p.261:

"... any civilised system of criminal jurisprudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also and perhaps mainly because in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill-treatment or improper pressure to extract confessions. It is therefore of very great importance that the courts should continue to insist that before extra-judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable doubt that the statement was not obtained in a manner which should be reprobated, and was therefore in the truest sense voluntary."

The voluntariness of any admissions however is primarily an issue of fact to be determined by the court by applying in a commonsense way to all the facts and evidence in the case, the test encapsulated in the fifth principle in the preamble to the Judges Rules and which is expressed in the following terms:

"(e) That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by the that person to a question put b y a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression."

So much then for principle, I turn next to the specific allegations or complaints advanced by learned counsel for the accused and which are listed earlier in this ruling.

As for the allegation of an inducement being held out to the accused. In the absence of any affirmative evidence being led from the accused and bearing in mind the sworn denials of the interviewing officer counsel for the accused was constrained to submit that it arose inferentially from the accused's "offer" in his charge statement (Ex.11) to repay the stolen money by surrendering his car and video set and the money held in his and his wife's bank accounts.

It is noteworthy however that a similar "offer" is recorded to have been made by the accused at the end of his caution interview (Ex.10) (see: qn and ans No: 42) some 5 hours earlier and presumably any inducement which might have prompted that "offer" would have been held out either before the caution interview was recorded or during the course of it which would have placed the accused in the Suncourt premises during which time the accused testified in detail the greater part of the assaults and threats occurred.

Needless to say it is difficult to reconcile the holding out of an inducement at the same time as assaults and threats were allegedly being perpetrated on the person being induced.

Then there is a further factor which is that the accused in his evidence denied making any of the statements recorded in both his caution interview and charge statement. If he is to be believed on that score then one is obliged to ask where was the need for any inducement in those circumstances?

The third complaint as to the long hours of detention was related to a breach of the Judges Rules and more particularly to the recording of the accused's charge statement (Ex.11).

The delay of 5 hours however is explained by Sgt. Adip as being occasioned by the need to question and then charge various persons named in the accused's interview, of which there were 4 in number. Furthermore there were no other officers available to charge the accused at the completion of his interview.

Under normal circumstances a delay of 5 hours between the recording of a detailed confession and the charging of an accused must be considered excessive, but in the special circumstance of this case having regard to the time when the interview was completed and the nature of the case where there had been no complaint made by the accused's employers and the nature of the complaint. I do not consider it so unreasonable a delay.

In this latter regard no specific complaint was made against the charging officer either in the officer's cross-examination or in the evidence of the accused. Instead learned defence counsel submitted that when he came to be charged the accused by reason by the length of time he had been in police custody coupled with the assaults and his lack of sleep and food was so tired and overborne that he made the admission recorded in his charge statement.

The accused's evidence however did not support such a position for as with his caution interview according to the accused his charge statement was already written out and was merely produced to him for his signature which was forced out of him.

Finally I propose to deal with the dual complaints of assault and threats because these are alleged in the accused's evidence to have occurred almost entirely at his employer's premises when he was taken there by Sgt. Adip and Sada Sivam.

In particular the accused testified that he was punched in the stomach threatened that he would be killed and made to do "press-ups" over a period of approximately an hour. As a result of a particular assault he fell on the chair and sustained a cut on the left side of his abdomen.

The accused also called Viren Kumar a former employee of Suncourt who testified that he saw the accused being assaulted by Adip and the accused fell and sustained a cut on his stomach. The officers also made the accused do "press-ups" and he overheard Adip threaten to assault the accused and put him in the cell. All this he claimed he witnessed during a brief minutes visit to an office in which the accused was with the two police officers and a company representative.

It may be noted that no medical report has been produced which might confirm the abdominal injury which the accused alleged he sustained nor was any complaint made on the numerous occasions that the accused appeared in the Magistrate Court with his counsel.

Needless to say Sgt. Adip denied either assaulting or threatening to kill the accused and in learned State Counsel's submission if the accused's assertion that his caution interview record was a police fabrication is to be believed then where was the need to threaten or assault the accused at the time and place at which it is alleged to have occurred.

Whatsmore if the accused's interview record was a police fabrication then no amount of assaults or threats can be said to render it involuntary for clearly the accused's will or resistance was not overborne or so affected as to cause him to confess - very simply, he did not confess.

As for the evidence of the defence witness Virend Kumar, State Counsel pointed out that the witness had not been subpoened and was a 'convenient witness' who ought not to be believed.

I note further that the witnesses' evidence bore a striking similarity to that of the accused not only as to the nature of the assaults but even up to the injury to the accused's abdomen. he made no complaint at the time to anyone ostensibly because his boss was present in the office and had given him his taxi fare that night. Since then however he has left his employment with Suncourt and presumably was "free" to tell his story. The nature and content of the threat he heard uttered by Adip and related by him in court also differed in several material respects from that testified to by the accused and finally the witness testified that they left the Suncourt premises at about 11.30 p.m. whereas the accused saw them there an hour later at about 12.30 p.m. They could not both be right.

After having carefully considered all the evidence and in view of the various observations made, I find that I am satisfied that the prosecution has proved beyond a reasonable doubt that the caution interview record Ex.10 and the charge statement of the accused (Ex.11) are both voluntary and accordingly may be led in evidence in the trial proper.

For the sake of completeness however I should add that no evidence may be led of any verbal admissions that the accused may have made.

(D.V. Fatiaki)
JUDGE

At Suva,
10th March, 1993.

HAC0011R.91S