State v Prasad [1993] FJHC 85; Hac0003d.93b (30 September 1993)

IN THE HIGH COURT OF FIJI
At Labasa
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 3 OF 1993

THE STATE

v.

PARMEN CHANDRA PRASAD
s/o Satruhan Prasad

MURDER: Contrary to Section 199 of the Penal Code Cap. 17

THE STATE

v.

PARDHUMAN PRASAD
s/o Satruhan Prasad

2 Counts:
INTENT TO CAUSE GRIEVOUS HARM:
Contrary to Section 224(a) of the Penal Code, Cap. 17

Mr. Ian Wikramanayake for the Prosecution
Mr. A. Kohli for the Accuseds

RULING

In this trial within a trial, the defence challenges the admissibility of the interview of the first and second accused of 8th October, 1992.

For the prosecution 3 police officers were called and for the defence the 2 accused persons gave evidence.

It was in evidence that the two accused had given earlier statements - Exhibit I (Statement of 1st accused dated 8.10.92) and Exhibit 2 (Statement of 2nd accused dated 8.10.92).

The learned defence counsel is objecting to the admissibility of the two interview statements on the following six grounds:

(a) systematic softening of both the accused from the time of arrival at the Police Station about 8.00 p.m. up till the commencement of interview at 4.00 a.m.

(b) Oppression

(c) Threats, short of assault, prior and during the interview

(d) Inducement - prior and during the interview

(e) Confession obtained improperly and unfairly.

(f) At time of interview accuseds were drunk.

In this trial within a trial it is my function only to decide on the admissibility of the challenged statements.

In the Privy Council in WANS KAN MING v THE QUEEN (1980) A.C. 247 at 261[1978] UKPC 34; , (1979) 1 AER 939 at 946 in the judgment of Lord Hailsham of Marylebone it is stated:

"The basic control over admissibility of statement are found in the evidential rule that an admission must be voluntary i.e. not obtained through violence, fear or prejudice, oppression, threats and promises or other improper inducements. See decision of LORD SUMNER in IBRAHIM v. R [1914] UKPC 16; (1914-15) AER 874 at 877. It is to the evidence that the court must turn for an answer to the voluntariness of the confessions."

In the preamble to the Judges' Rules is set out the legal test for admissibility in evidence of any alleged confession as follows:-

"That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by 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."

It is for the prosecution to prove beyond reasonable doubt that the admissions were voluntary. I remind myself of this.

It is essentially a question of fact.

Evidence for the prosecution in the trial within a trial was given by Detective Corporal 1489 SHRI BHAWAN SINGH (PW11), CONSTABLE NO. 917 ANAND PILLAI (PW12) and Corporal 858 AHMED KHAN (PW13).

The PW11 interviewed the A1 and recorded it (exhibit I) and PW12 witnessed the interview of the A2 by Dectective Constable 1306 DHIR SEN. It was Dhir Sen who recorded the interview (exhibit 2) and PW12 was present throughout the interview. Dhir Sen is at present away overseas serving in the Peace-Keeping Force in Iraq.

These witnesses denied the defence allegations.

I shall now deal with the salient features of the evidence of the prosecution and defence in so far as they are relevant to the determination by me on the issue of admissibility of the two interview statements (exhibits 1 and 2).

In evaluating the evidence I have not lost sight of any of the points raised by both counsel. Each counsel has presented his case fairly and ably.

I also bear in mind all the circumstances leading up to and surrounding the making of the alleged statements.

It is not in dispute that at about 8.10 p.m. both the accused persons who are brothers came to the Labasa Police Station on their own volition after the alleged incident of 8.10.92, that they both had blood stains on their body and clothes; that the A1 brought a knife with him and this knife was taken away from him by PW13 at the Police Station.

In order to test the credibility of PW11, Mr. Kohli cross-examined him at length on the language in which the A1 was interviewed. The PW11 says it was in English and A1 says it was in the Hindustani language; Mr. Kohli also emphasized this point by referring to a number of questions in exhibit I by saying that a series of questions were asked in the Hindustani language and the answers were incorporated in one answer in the manner stated in exhibit I.

I accept PW11's testimony in regard to the language and the manner in which it was recorded. There does not appear to be any reason as to why this police officer of long standing should be lying to Court on this or any other aspect in the interview. After all A2 as well as A1 came on their own to the Police Station as police at that time knew nothing of the alleged incident and they could not just make up a story.

The accused are not denying that they did not make the statements attributed to them although they say that some of the things they said are not recorded.

According to prosecution witnesses whose testimony I have no reason to doubt, and which I accept, whatever the two accuseds said in answer to the questions put to them are recorded in exhibits 1 and 2.

In cross-examination A2 said he was "less drunk" at 4.00 a.m. the time of interview. He said he understood questions; that he was not assaulted but threatened; he said he was not concerned with whether the boy lived or died and as soon as police came to know at 4.00 a.m. that he died they decided to interview him. He agreed there were breaks in the interview but denied being served with refreshments.

The A1 has a secondary school education. He went to Police Station with his brother A2. He said he was drunk and felt sleepy. He denied that the interview was read back to him in full. He said that there are certain things not recorded. He said that his answers were not voluntary.

In cross-examination A1 said that he came to Police Station to tell the police about a fight in which he and his brother A2 were involved. He (A1) came with a knife. He said that not everything that he told the police was written down. He agreed he did not complain to the Magistrate on 8.10.92 that he was unfairly treated. He said his last drink was at 6.30 p.m. and was not "fully sober" by 4.00 a.m. He said that he still expected to be allowed to go home after reporting and after "killing someone" in answer to questions put to him. He alleged threats such as "had you had beating from Police", being "poked". In answer to the question "you came to Police Station with knife and expect to go home?" he answered "I thought allowed to go home not realising he died".

The accuseds are not even saying that they were drunk to such an extent that they did not know what they were saying or did not understand the questions put to them. They had sufficient courage and stamina to go to the Police Station after the alleged incident of knifing despite having had drinks. If they were drunk the police officers would surely have noted it but they say that the accused were not drunk.

I am not satisfied that they were drunk either at the time they came to the Police Station or at 4.00 a.m. I therefore do not accept the version given by the accuseds in this regard.

I am satisfied and the prosecution has proved beyond reasonable doubt that the accused after caution was administered to them were in their proper senses and they understood the questions that they were asked and were able to answer them and that the answers were properly recorded by PW11 and Constable DHIR SEN as witnessed by PW12.

There is no doubt that the accuseds were at the station for long hours. As I said earlier on, they came on their own after the alleged knifing incident culminating in the death of Avinesh Chand Lal. Surely in these circumstances they could not expect to be released to go home and rest and return to Station although A1 thought that he would be allowed to go home but shortly after their arrival police took them to their house for them to change clothes and brought them back.

I find as proved beyond reasonable doubt that at the Station they were given proper refreshment and there were breaks during the interview as stated by the PW11 and PW12.

The alleged statements such as the "eating of cassava" and "what have you done" the accused say amount to threats. Looking at these in the context in which they were made if made at all, do not amount to threats.

The learned defence counsel referred the Court to a statement by his Lordship the Chief Justice in the case of DPP v Epi Nabua and others (Labasa High Court Criminal Case No. 3/92) in his Ruling on a Trial within a Trial in which he said:

"The very late hours during which 1st and 2nd accused were interviewed does cause serious concern about the overall propriety of the interviews and the resulting admissions that were made, particularly when the Police notes of what had actually transpired were not what they ought to be".

The facts of this case cannot be compared with Epi Nabua's, there circumstances surrounding the case and facts are completely different from the case before me. One cannot just put the phrase "very late hours" from that Ruling and use it here to any advantage. Each case has to be looked at on its own facts.

There is nothing to prevent interview taking place at any hour and the learned defence counsel agrees with that statement. One has to look at the facts of the case, the circumstances surrounding what took place after the accuseds' arrival at the Station; how they were handled by the Police.

On "Oppression" I quote the following passage from Archbold 39th Edition p.751 para. 1380a and have borne it in mind:-

"The word "oppression" was considered by Sachs J. in R. v. Priestley (1965) 51 Cr. App. R. 1 " ... this word ... imports something which tends to sap and has sapped that free will which must exist before a confession is voluntary ... whether or not there is oppression in an individual case depends upon many elements ... they include such things as the length of time intervening between periods of questioning, whether the accused person had been given proper refreshment or not and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid or an old man, or somebody inexperienced in the ways of this world may turn out not to be oppressive when one finds that the accused person is of tough character and an experienced man of the world." In R. v. Prager (1972) 56 Cr. App. R. 151, the Court of Appeal adopted and applied not only this definition but also the following ex cathedra statement of Lord MacDermott: "oppressive questioning is questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent."

Having heard this evidence I find that the accused were fairly treated by the police, they were given proper breaks; they were given refreshment and I believe the prosecution witnesses in this regard and reject the version given by the accused in regard to these matters.

I am completely satisfied that the statements taken from the two accused persons are admissible in evidence, they were properly taken as described by the police witnesses, that they were freely and voluntarily given by the two accused, without force, duress, threats or violence being used and no inducement offered to persuade the accuseds to make the statements.

I am satisfied that there is no substance in the various allegations made by the two accused persons.

I believe the evidence of the three police witnesses without any reasonable doubt.

The evidence of the statements will therefore be admitted.

D. Pathik
Acting Puisne Judge

At Labasa
30th September, 1993

HAC0003D.93B