State v Wati [1997] FJHC 209; Hac0006d.95s (19 May 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 6 OF 1995

THE STATE

v

PRABHA WATI and
SARWAN SINGH

Counsel: Mr. J. Naigulevu for the State
Mr. A. Kohli for First Accused
Mr. S. Maharaj for Second Accused

Decision: 19th May 1997

DECISION OF PAIN J.
ON ADMISSIBILITY OF CAUTION STATEMENTS

The two accused are jointly charged with murder. They each object to the admissibility of his/her caution statement made to the Police. Evidence has been heard on a voir dire.

This voir dire hearing has extended over a period of 2 months. Twenty-four witnesses have been called and I have taken 550 pages of handwritten notes of evidence and submissions. It would be impossible for me, in this decision, to review all the evidence. There are stark conflicts between the prosecution and defence evidence. There are also differences and inconsistencies in the testimony of prosecution witnesses themselves, in the testimony of the 1st accused and her witnesses and in the testimony of the second accused and his witnesses. However, I have carefully considered and evaluated all the evidence as it has been given and in preparing this decision.

The law on this topic is well settled. There are two broad grounds on which a confession can be excluded. If the prosecution has not proved the statement to be voluntary or if it was obtained unfairly (R v Horsfall [1981] 1 NZLR 116; Kamlesh Lata v Regina Fiji Court of Appeal No. 71 of 1983, decision 13th July 1984). A statement is not voluntary if it is obtained either by fear of prejudice or hope of advantage excited or held out by a person in authority or by oppression (Ibrahim v The King [1914] AC 599; DPP v Ping Lin [1976] AC 574; Principle (c) in the Preamble to the Judges Rules; R v Priestley 1965 51 Cr. App R 1). The onus is on the prosecution to prove that the statement was made voluntarily. That is proof that it was not obtained by such fear, hope or oppression. The standard is proof beyond reasonable doubt. (Wong Kam-ming v The Queen (P.C.) [1980] AC 247; Kamlesh Lata v Regina (supra).

It is not practical or necessary for me to review all the submissions of counsel. The principal ground advanced for both accused is that the statement was made because of oppression. This must be excluded by the prosecution in each case for the statements to be admissible.

There are some common features relating to the interviews of both accused. They were suspected of having jointly killed the deceased. Instructions were given on the 13th October that they each be separately interviewed and both interviews commenced on that day. Both were interviewed at length and denied involvement. Both interviews were substantially continued throughout the whole of the night of the 13th October 1994. Both interviews were suspended around 7 a.m. on the 14th October 1994. The interview of the first accused resumed after a break of 25 minutes and that of the second accused after a break of 1 hour 45 minutes. During this next period of interview both accused capitulated and "confessed" to involvement in the killing. Both say that they succumbed to pressure exerted upon them by the Police.

Each objection must be considered separately. I find it convenient to deal first with the case of the second accused.

OBJECTION BY SECOND ACCUSED (SARWAN)

Instructions for the interview of Sarwan were given to Detective Sergeant Mohammed Hanif (HANIF) and Detective Corporal Surendra Prasad (SURENDRA) at 8 a.m. on Thursday 13th October 1994. At about 9.30 a.m. they went to Sarwan's home but he was not there. They spoke to his mother. They returned at 3 p.m. and again at 6 p.m. but did not go into the property as the gate was closed and it appeared that nobody was at home. (Actually Sarwan and his mother were in the house). They returned at 9.40 p.m. and took Sarwan to the Central Police Station.

The interview did not commence until 11.30 p.m. It continued throughout the night until 7 a.m. the following morning with two one hour breaks at 2.30 a.m. and 5 a.m. During this period the accused did not have any sleep. He answered a total of 216 questions. He made no admissions and said that he did not know how the deceased had died.

The interview resumed at 8.45 a.m. and the next break was taken at 12.43 p.m. for lunch. This is the period during which Sarwan is alleged to have confessed his involvement in the killing. It is the longest uninterrupted period of interview.

The interview resumed at 2.15 p.m. and continued until 7 p.m. with a break from 3.25 p.m. until 4.45 p.m. At 7 p.m. there was a long break of 5½ hours during which Sarwan was taken to his home at Waila, Nausori.

The interview resumed at 12.30 a.m. on Friday 14th October 1994 and was finally concluded at 1.30 a.m.

The total period of interview from start to finish was 26 hours. According to the record of interview that comprised 13 hours 55 minutes of questioning and 12 hours 5 minutes of suspensions.

Counsel for Sarwan submitted a number of grounds upon which the statement is challenged. The principal ground is that this was not a voluntary statement because it was obtained by oppression. There are three matters relevant to this issue. They are the health of Sarwan, the length and nature of the interview and alleged threats and assaults.

Health of second accused

There is no doubt that, on the day of the interview Sarwan had health problems.

A week or two earlier he had been a passenger in a vehicle involved in a motor accident. He suffered injuries to his arm and leg. These had been treated at Nausori Health Centre. Although the injuries were not serious, he was still off work.

Sarwan also had a urological problem that had persisted for several months. On the morning of 13th October 1994 he consulted Dr. Reddy because of his continuing symptoms. I unhesitatingly accept the evidence of Dr. Reddy. He said that Sarwan was suffering from a urinary tract infection. Sarwan complained of increased frequency of micturition, painful micturition, body aches and mild fever (high temperature). These afflictions would be caused by the urinary infection. As Sarwan had earlier been cleared by the STD Clinic, Dr. Reddy decided to refer him to the specialist urologist at CWM Hospital. He gave him a letter to take to the hospital for this purpose. He also prescribed Panadol for the body aches and fever and Tibral, which is similar to an antibiotic, for the infection.

Significantly, Dr. Reddy said that at the time of his examination on the morning of 13th October he would have certified Sarwan as unfit for work.

Dr. Reddy said that the dosage for Tibral was 3 tablets together and then one every night. The drug may cause nausea, drowsiness, dizziness, muscle weakness and fatigue. For that reason, it is best that it be taken at night. The effect of the drug starts from 1 to 3 hours after it is taken and can last up to 48 hours.

Sarwan said that when he obtained the Tibral tablets from the chemist he took 3 immediately. He then went to CWM Hospital and made an appointment to see the urologist on the following day. He returned home "before 3 o'clock" (his mother said between 1 and 2) and then rested. He was still feeling unwell. He took another tablet about 8 p.m. and went to bed. This is confirmed by other witnesses and I have no reason to disbelieve it. Dr. Reddy said that if the accused took 3 tablets at midday and then one at 8 p.m. "he was following instructions".

I am satisfied that the Police were aware of Sarwan's illness - both when they called at his home at 9.40 p.m. on 13th October and during the first session of the subsequent interview. Hanif said that Sarwan only told him at the house that he had been to CWM Hospital to make an appointment to see a specialist in respect of a urine problem. However, he only saw the nurse at reception and a date was not given. That is totally inconsistent with Question 72 put by Hanif at the interview. Sarwan was asked "when we visited your house, you said to us that you were not feeling well, had visited doctor and will be visiting doctor on 14/10/94. Can you tell us your sickness?" Sarwan advised that it was something to do with urology. He was then asked whether he was still working (Q.74) and replied "no, unfit due to accident and urology and also fever".

Sarwan said that during the interview he was not feeling well. At various times he had body pains and was feeling feverish, drowsy, sleepy and very weak. I am satisfied that he was unwell during this time. This would have been caused by his urinary infection, the combined effect of the four Tibral tablets he had taken, and the fact that he was kept without sleep during the whole of the night. He could hardly have been "fresh" which was the description regularly given by the police officers in the course of their evidence. This condition would make him more likely to yield to any Police oppression during the interview.

Length and nature of interview

This interview was not commenced until 11.30 at night. Certainly the Police had first gone to Sarwan's house at about 9.30 a.m. but Sarwan was not at home. They returned at 3 p.m. and 6 p.m. but did not go to the house. Hanif said that the gate was closed and it looked as if nobody was at home. He then elected to return at 9.40 p.m. and took Sarwan to the Central Police Station. The interview still did not commence until 11.30 p.m. That is a time when most people, and certainly Sarwan in the particular circumstances, could be expected to be having their nightly sleep.

There is nothing in the evidence to indicate any urgency to commence the interview that night. The Police Officers did not say that they desired or had been instructed to interview the two accused contemporaneously. A search warrant obtained two days earlier in respect of the Sarwan's house had not been executed. Hanif explained that the Police wanted to complete the investigation and, as he had all the materials he needed, he thought that they would complete the interview in a couple of hours. A perusal of the record of the interview shows that such a belief would have been totally unrealistic. This Court has, on occasions, questioned the propriety of suspect interviews being conducted at very late hours. His Lordship, the Chief Justice, said in DPP v Epi Nabua & ors (Lambasa High Court Criminal Case No. 3 of 1992) that "it always defies understanding why the police at times elect to do so".

Having commenced at 11.30 p.m. Hanif then continued the interview right through the night until 7 a.m. with only two breaks of 1 hour each. During those breaks, except for going to the toilet once, the accused remained seated in the small interview room.

The crucial part of this interview is the period from when the interview resumed at 8.45 a.m. until the next suspension for lunch at 12.43 p.m. At the start of that period Sarwan had been in actual or effective custody since 10 p.m. the previous night. Since 11.30 p.m. he had been almost continuously confined in a small office for 7½ hours and had been asked 216 questions. He had been denied sleep throughout the whole of the night. He was known to have some illness and was never asked how he was feeling or if he wished to rest. Hanif persisted in continuing with the interview. All these factors have an oppressive feature and would have made Sarwan more susceptible to any pressure that might have been applied after the interview resumed at 8.45 a.m.

Hanif said that he carried on with the interview because the accused did not say that he wanted to rest. It is apparent that he intended to proceed with the interview without a break for sleeping for so long as he thought was necessary. In fact the interview was not concluded until 1.30 a.m. the following morning. That is a total of 26 hours from start to finish of the interview. Of that almost 14 hours was spent on interrogation. The balance was for suspensions. These included a single break of 5½ hours during which the Police took Sarwan to his home at Waila and recovered some property. It was an extraordinarily long interview by any standards.

Allegations of threats and assaults

The substantial allegations relate to the period of interview between 8.45 a.m. and 12.43 p.m. on the 14th October 1994. However Sarwan alleges that even before then some pressure had been applied. He said that before the interview began ASP Santa Prasad (SANTA) said to him "Whatever they ask, whether you know or not, just say yes. If you don't they have ways of making you say yes". He also said that during the period of interview from 6 a.m. to 7 a.m. on the 14th October 1994, at the time when he was being questioned about taking the First Accused to the Hibiscus Festival, he was punched by Surendra. He further said that during this period Santa entered the room and said to him "If you don't agree to what we will be saying to you, you will see the extent to which we police officers will take you to". Finally he said that during the break from 7 a.m. to 8.40 a.m. Santa came in and said to Hanif "You people are wasting time. I told you to write and make him sign. If he refuses assault him. If you break his arms and legs we will say we took him to Navua for some reconstruction and he jumped out of the van." All these incidents are denied by the interviewing officers.

There is a total conflict of evidence about what happened during the period of interview from 8.45 a.m. to 12.43 p.m. Hanif and Surendra said that there was a continuous interview, in question and answer form, over this whole period of just on 4 hours. No pressure was brought to bear on Sarwan. Immediately the interview resumed at 8.45 a.m. Question 217 was put to Sarwan. This was "We are informed by Rosie that you strangled Intaz Ali with veil and when he died you and Rosie loaded his body into your van Reg. No. AS591 and threw the body somewhere in the bush in Queens Road. What do you say to this?" Both police officers said that Sarwan responded in Hindi saying that he would tell the truth. The interview then continued in Hindi until the lunch break was taken at 12.43 p.m. with Sarwan admitting his involvement.

Sarwan gave a different account. He said that when the interview resumed at 8.45 a.m. it was put to him that the first accused had implicated him in the killing of Intaz Ali. He denied this. He was then subjected to threats and assaults over a long period. As a result and through fear of further serious harm, he ultimately succumbed to their demands and agreed to their questions.

Sarwan said that he denied the question when it was put. Hanif then left the room for ½ hour. On his return he grabbed Sarwan by the collar and dragged him to the other room where the first accused was being interviewed. There was a confrontation and the first accused said "You have killed him". Sarwan denied this. He said he was then taken back to his interview room. Hanif held both his hands. Surendra opened the zip of Sarwan's trousers and exposed Sarwan's penis. Surendra squeezed some red chilli in his hand, pulled back the foreskin and placed the chilli under the foreskin. Surendra also squeezed Sarwan's testicles and punched him in the stomach and sides. This continued for 15 to 20 minutes. Hanif then left and returned after half an hour. He had a basin of water which he placed on the table. He grabbed hold of Sarwan's head, pushed his face into the water, held it there, then pulled his head up and said "now do you agree". This continued for 20 to 25 minutes. Hanif left saying he would give Sarwan time "to think it over". He returned after 10 to 15 minutes. As Sarwan still denied. Hanif continued immersing his head in the water and pulling it out for another 15 to 20 minutes. Then Hanif soaked a hand towel in water and spread it on the table. He then banged Sarwan's forehead on to the table. Hanif left for another 5 or 10 minutes. On Hanif's return, Sarwan still denied, as he had denied throughout all this time. Sarwan said that Santa then came in and said "do the same thing as was done to the Policeman". Sarwan said, he was then handcuffed to Const. Kishor. Surendra said to him "There was a policeman who was not agreeing and it was told that he jumped over a bridge somewhere in Navua". He was asked again if he agreed and he denied. He was then taken out of the room and after they had gone a few metres down the corridor he said "Whatever you will be saying, I will agree". Sarwan said in evidence "I agreed out of fear. They told me they were going to end my life by taking me to Navua". He was then taken back into the room and the interview continued. Sarwan said that he answered the questions. Sarwan said that thereafter, he "gave this statement on their suggestion. I was always kept under threat and fear not to object to things they say. Also I was not feeling well and the extremely long hours. I did not give the statement freely. Just because of threat, assault and fear". Sarwan also gave evidence of further threats later in the interview, before he saw his mother, before he was taken to his home and before he was charged. All these allegations of threats and assaults were denied by all the police officers.

If Sarwan's version is true, then the statement was obtained from him in a manner that should be reprobated. It was obtained by oppression and was not in the true sense a voluntary statement. However, the onus is not on Sarwan to prove this. The onus is on the prosecution to prove that oppression "played no part" in the obtaining of the statement (R v Hudson (1981) 72 Crim. App R 163). For the statement to be admitted the evidence of the police officers must be accepted as true and the evidence of Sarwan rejected.

A very significant fact is that this period of the interview occupied just on four hours. (Three hours fifty-eight minutes to be exact). The police officers said that this was a continuous period of question and answer interview. Sarwan said that it was "three hours of torture and one hour of interview".

Throughout the whole interview, this 4 hour period from 8.45 a.m. was the longest uninterrupted period of interview. Yet it has the least number of questions and answers - only 14! That is an incredibly small number for such a long period of time. Under cross-examination the recording officer, Surendra, conceded that this equated to an average of 17 minutes for each question and the answer given to it. The average for all of the other six sessions is 3.2 minutes.

Under cross-examination Surendra said that, during this period, it was a continuous interview in the form of question and answer. He said that it continued for 4 hours without a break because Sarwan "started coming out about the facts". His explanation for 14 questions taking such a long time was because of the change from the English to the Hindi language after the first question (No. 217) had been asked. He said "I am not good at writing Hindi. That is why I took that time". He said that he took over asking the questions because Hanif is not familiar with Hindi. He had to write each question, explain it to Sarwan and record the answer. He also said that it took Sarwan some time to answer Question 217 and the subsequent questions.

Hanif said that after Question 217 was asked, Sarwan said nothing for 6 or 7 minutes. He then said that he wanted to make a statement in Hindi. Thereafter the interview was conducted and recorded in Hindi by Surendra. It took quite some time for Sarwan to answer the questions that were put to him. He estimated 4 to 6 minutes before answering each question but conceded that for Question 220 (a short question and answer) the time would only have been a minute or two.

This evidence from the interviewing officers fails to account for only 14 questions with their answers being recorded in 4 hours. It is inconsistent with other facts and evidence. It is not credible that so few questions could have taken so long. For instance:

- The comparison with the evidence of the number of questions asked during other periods of the interview is dramatic. In fairness, the comparison should be with the three later sessions when the interview continued in Hindi. In 1 hour 10 minutes from 2.15 p.m. to 3.25 p.m., 21 questions were put which is an average of 3.3 minutes for each question and its answer. In 2 hours fifteen minutes from 4.45 p.m. to 7.00 p.m., 29 questions were put which is an average of 4.6 minutes. In 1 hour from 12.30 a.m. to 1.30 a.m. 10 questions were put which is an average of 6 minutes - although Surendra said that during this period the statement was read back to Sarwan and this took half-an-hour. If this was done, the average time would then be 3 minutes. These average times show a gross disparity with an average of 17 minutes for each question and its answer during the period of interview under consideration.

- The excess average time taken for each question in the suspect period compared to the later periods is far greater than the time that Hanif says that Sarwan remained silent before answering each question.

- The form and nature of the questions and answers during the suspect period belie the explanation given for the inordinate length of time taken. Many questions are very short e.g. Q.219 What do you want to say? Q.223 What is the name of her husband? Likewise most answers are short and many contain only 2 or 3 words.

- In the original Hindi record 8 of the questions and 7 of the answers have each been contained within only one line of the page. The 13 questions written in Hindi occupy all or part of 20 lines (an average of only 1.54 lines each) and the 14 answers occupy all or part of 31 lines (an average of only 2.21 lines each).

There are some other matters that adversely reflect on the reliability of the police evidence that the period from 8.45 a.m. to 12.43 p.m. was solely a continuous interview with nothing else occurring.

Throughout the voir dire the police officers gave evidence that the interviews of Sarwan and the first accused were conducted in isolation without any coordination or communication between them. Nobody kept a check on what was happening at the separate interviews and the interviewing officers did not report progress to anybody. This is difficult to accept. I am satisfied from the total evidence that Santa had a controlling role. He kept a check on the interviews and was aware of the progress being made.

According to the record, the interview of Sarwan recommenced at 8.45 a.m. and Hanif asked Question 217 "We are informed by Rosie that you strangled Intaz Ali with veil and when he died you and Rosie loaded his body in your van Reg. No. AS591 and threw the body somewhere in the bush in Queens Road. What do you have to say to this?" Surendra said in cross examination that they had not had any communication with the Command Centre where the first accused was being interviewed and he did not know how Hanif came to ask this question.

When Hanif was cross-examined he said that Santa had told him that the first accused had confessed and implicated Sarwan. He said "That was in the break. In the corridor. At about 8.40. He informed me Rosie has confessed the killing of Intaz Ali with Sarwan Singh. That is all he informed me." When questioned further about the detail contained in the question he gave an elaborate story of a discussion with Santa touching upon the fact that the post mortem had not ruled out strangulation, the body was discovered at Queens Road in the bush, no injury could be seen on the neck because of decomposition of the body, clothes rather than string or wire must have been used and it "came to their minds" the clothes that Indian woman wear and a "veil could have been used" to strangle the deceased. Hanif said that it was on the basis of this discussion with Santa as to how it could have happened, that he put Q.217 to Sarwan. The luncheon adjournment was then taken. Hanif must have reflected upon the unlikelihood of this discussion forming the basis for such a detailed question. When his cross-examination resumed after lunch he changed his story and said (after some hesitation and further conflict) that Santa had given him all the information contained in the question.

There is a further intriguing matter. The police officers Adi Sen and Raj Kumar who interviewed the first accused were adamant that they did not communicate with others regarding the interview. They said that Santa came in a few times, saw that everything was alright and left without speaking to anyone. In respect of the period from 7.30 a.m. to 12.10 p.m. on 14th October when the confession of the first accused was recorded, they said that nobody left the interview room and Santa came in only once at about 10 a.m. The record of interview shows that during this period of 4 hours 40 minutes from 7.30 a.m. to 12.10 p.m. the first accused was asked 72 questions (245 to 316 incl.). The specific details of the killing of Intaz Ali by strangulation with a veil were not given until the answer to the 39th question (No.283). That is after more than half of the questions for that session had been asked. Moreover, the original Hindi record for this period of the interview occupies a little over 10 pages. This answer (to question 283) is given after 6 pages of interview have been recorded. That also is after more than half of the record of interview for this period had been completed. On the basis of this evidence, Question 39 would probably have been asked about half way through this period of interview which would be close to 10 a.m. Santa would not have been able to give Hanif details of the first accused's confession as early as 8.40 a.m. If that is so, then it could not have been a continuous interview of Sarwan from 8.45 a.m.

Throughout the interview until a break was taken at 7 a.m., Sarwan had denied any knowledge of the death of Intaz Ali. Why would he suddenly change his attitude on the resumption at 8.45 a.m? Would the Police advice that he had been implicated by the first accused have prompted him to immediately confess his participation?

I have carefully considered all of the evidence, including the specific matters I have mentioned. I am satisfied that there was not a continuous interview of Sarwan during this crucial period from 8.45 a.m. to 12.43 p.m. This whole period could not have been taken up by the questions and answers that have been recorded. The Police explanation is that this length of time was needed because of Sarwan's delays in answering the questions and the difficulty in recording the interview in Hindustani. That explanation is unacceptable. It cannot explain this inordinate time of almost 4 hours to complete 14 questions and answers. Something other than the putting, answering and recording of these questions and answers must have occurred.

The police officers who gave evidence say that nothing else happened. The prosecution has no plausible explanation for such a long time being taken.

The only evidence of something else occurring comes from Sarwan himself. His credibility is at times suspect. For instance, he went to extreme lengths to distance himself from any incriminating admissions and would have the Court believe that every police officer breached every possible rule for the taking of statements. However, on the issue of oppression he has remained firm. He said that he was threatened by the Police Officers, forced into a confrontation with the first accused, assaulted in several different ways and finally coerced into agreeing and making a confession through the threats and fear of further serious harm. The effect of any such threats and assaults would, of course, have been exacerbated by Sarwan's ill health, the length of the interview and lack of sleep.

As I said earlier, the onus is on the prosecution to prove that the statement was given voluntarily and not made because of oppression. Unless oppression is affirmatively excluded, the statement cannot be admitted. In the particular circumstances this burden has not been met.

I am not saying that everything Sarwan said about the police actions is absolutely true. There may be some embellishment. However, I am satisfied that the whole period from 8.45 a.m. to 12.43 p.m. was not taken up by the interview. Something happened to cause Sarwan to change his attitude. In the absence of any other plausible explanation, I cannot exclude the possibility that such oppression as alleged by Sarwan did occur. That means that the prosecution has not discharged the onus of proving that there was no oppression and that the statement was made voluntarily. For that reason it must be excluded.

Further evidence that is part of the inadmissible confession or relies upon that inadmissible confession for a probative link to the accused must also be excluded. (Lam Chi-ming & ors v The Queen (P.C.) [1991] 2 AC 212).

The visit to Sarwan's house on the night of 14th October, when the Police recovered the title deed and other property, took place in the course of, and was still part of, the inadmissible interview. It is as much an admission for a person to take the Police and show them where an item is, as to describe the location of that item in the interview room. Accordingly the evidence of what occurred at the house must also be excluded. That includes the alleged admissions made by Sarwan to his brother. That was still during the interview (which did not conclude until 1.30 a.m. the next morning) and was inextricably linked to it.

The charging of Sarwan commenced only 10 minutes after the caution interview was completed. That charge statement must also be excluded. If "the two statements are so inter-related then, if the principal statement be excluded, rejection of the other statement must follow" (Kamlesh Lata v Reginam - supra).

The admissibility of the medical report from the doctor at CWM Hospital now becomes a non-issue. With the exclusion of the caution statement it has lost its relevance.

Finally there is the evidence of the police that they recovered some ash, gravel and small hinges from Sarwan's home on the 17th October 1994. This was from a site in the compound that was used for burning rubbish. The production of these articles alone would not implicate Sarwan. In order to identify them and link them to Sarwan it would be necessary to rely upon Sarwan's admissions in the course of the interview at both the police station and his house. The discovery of those articles follows upon and their probative value is dependent upon the admissions made during the caution interview. With the exclusion of the evidence of that interview, the evidence in relation to the finding of the articles is rendered inadmissible.

Accordingly I rule, in respect of the second accused Sarwan Singh, that the evidence of the caution statement, the charge statement, the visit to his home with the Police on the night of the 14th October 1994, (including evidence of the items recovered and his conversation with his brother), the medical report provided by a doctor at CWM Hospital on 15th October 1994 and the recovery of items from his home by the Police on 17th October 1994 is all inadmissible.

OBJECTION BY FIRST ACCUSED

I turn now to the objection by the First Accused Prabha Wati, also known as Rosie (ROSIE) to the caution statement. So far as they are relevant, the comments on general issues and principles in my decision in respect of the Second Accused apply to this objection as well.

The alleged victim, Intaz Ali, lived with Rosie. He went missing somewhere about 11th August 1994 and his body was found on the 16th August 1994.

Inspector Adi Sen (SEN) gave evidence that he was assigned to the case as investigating officer on the 19th August 1994. On the 7th September 1994 he spoke to Rosie at her home. She identified the deceased's clothing and gave Sen certain property of the deceased. He spoke to her later that same day at the Police Station and accompanied her and a brother of the deceased to the hospital to identify the body.

Rosie gave evidence that the Police came to see her on more than one occasion. She was critical of their conduct. She said that they just took items that they wanted and at times they "spoke harshly" to her.

Also in September 1994 Rosie consulted a solicitor Mr. Mehboob Raza. She complained that the police had been coming to her house and "hassling" her. She said that they wanted to question her but she did not know when. Mr. Raza prepared a letter addressed generally to police officers advising that if and when they intended to question his client he was to be informed. This letter was given to Rosie and she was told to hand it to the police if they came to question her.

Instructions for the interview of Rosie were given to SEN and Const. Raj Kumar (KUMAR) at 7 a.m. on Thursday 13th October 1994. Shortly after 8 a.m. Sen, Kumar and Woman Constable Malti Devi Reddy (MALTI) went to Rosie's home. They brought Rosie to the Central Police Station at 8.35a.m.

The interview commenced at 9 a.m. on the 13th October 1994 and was not concluded until 5.05 p.m. on the 14th October 1994. That is a total period of 32 hours and 5 minutes.

The substantial ground of challenge is somewhat implicit in the time taken for the interview. It is submitted that the prolonged interview together with other conduct of the police amounted to oppression.

In my ruling in respect of the first accused I referred to criticism made by this Court about interviews being commenced by the Police at late hours. This can also apply to interviews that are extended over long periods without adequate rest being given. The State v Eminoni v Koroi and ors (Labasa HC Criminal Case No. 3 of 1989 decision 19.3.90) is a case in point. An interview of the second accused lasting 21 hours without proper sleep and food was held to be oppressive.

The interview of Rosie can be divided into clear sections. The first is from the commencement at 9 a.m. on 13th October 1994 until the suspension at 7.15 p.m. that night. During that period there was a break of 18 minutes at 11.20 a.m., a lunch-break of 1 hour 5 minutes at 1.00 p.m. and a break of 20 minutes at 4.25 p.m.

The interview began by Sen questioning Rosie about her occupancy of the house at 174 Ratu Mara Road since 1987 and her relationship with the owner Bimla Devi. By Qs.20 and 21, Rosie was being questioned about the death of Bimla Devi at 174 Ratu Mara Road in July 1989. This led to questions about Ram Charan, whom Bimla Devi called "brother", and a will of Bimla Devi that Ram Charan gave to Rosie. That will was in favour of Rosie. Questions were then asked about a previous interview of Rosie by the police in respect of that will. Rosie agreed that charges, including forgery, had been laid against her and Ram Charan. She was then questioned about her relationship with Ram Charan and whether she knew of his present whereabouts. When giving evidence on the voir dire, Rosie said that Sen had a file in front of him that he kept referring to. That must certainly be true. What then follows in the interview is effectively a cross-examination of Rosie on a statement that she had made to the police about the matter and also on statements that had been made to the police, by Ram Charan's wife, Rosie's sister Kusma Wati, Kusma Wati's two sons Rajesh and Raj Kumar, a taxi driver Hari Kissun, Pradeep Chand (a witness to the will) and Pradeep's wife. The particular purpose was to show that Rosie had an intimate relationship with Ram Charan but she denied this.

According to the police Rosie had been arrested and brought to the police station for interview on suspicion of murder of Intaz Ali. Yet no mention was made of Intaz Ali until Q.108 of the interview and Ram Charan continues to be mentioned until Q.115. That would probably have been about 6 p.m. as Q.100 was asked at 4.45 p.m. and Q.132 was answered just before 7.15 p.m. This gives some credence to Rosie's evidence that she did not know what she was being interviewed for.

The interview from 9 a.m. to about 6 p.m. related entirely to these earlier matters and not to the death of Intaz Ali. It occupied a total period of 9 hours comprising 7 hours 17 minutes of questioning and 1 hour 43 minutes of suspensions. Sen's explanation for asking these questions is totally without merit. He said that questions were asked for clarification when Rosie mentioned Bimla Devi and the will. That is not consistent with the questions he asked or the fact that he was pre-armed with a police file containing statements that were put to Rosie. Sen also explained that he thought there may have been some motive relating to the property at 174 Ratu Mara Road where Intaz was staying before his death. This was not explained or explored during the interview. The questions put to Rosie could be construed as suggesting that she was somehow implicated in the death of Bimla Devi, unlawfully obtaining the property by means of a false will (she had been charged with forgery) and the disappearance of Ram Charan. It savours of a pot-pourri interview in respect of all past suspected offending. It was quite wrong for her to be interviewed about other suspected offences and cross-examined on the statements of others. The issue has not been argued but this whole section of the interview is probably irrelevant and inadmissible in this trial. Suspicions arise that it might have been done in an effort to obtain a confession about those earlier matters or to make Rosie apprehensive about further questioning in relation to Intaz. What can be said is that it was unfair, it unnecessarily prolonged the caution interview and it added to the potential oppression of the accused.

The next section of the interview commenced at 7.30p.m. (after a break of 15 minutes) and continued until 1.30 a.m. the next morning with a break of 1 hour 30 minutes at 9 p.m. for dinner. During this period Rosie was questioned at length about the disappearance of Intaz and her relationship with Sarwan.

It is clear that Sen was in control of the interview and decided when the breaks would be taken. It was his decision that the interview should continue for 16 hours 10 minutes from its commencement at 9 a.m. until 1.10 a.m. the next morning before a substantial suspension. Certainly there were 5 earlier suspensions totalling 3 hours 28 minutes and food and refreshment had been provided. However, except for going to the toilet, Rosie was kept in the confines of the interview room for the whole day. After a full day, most people would expect a normal night's sleep in the evening. Instead, Rosie was kept up until 1.30 a.m. under interrogation. There is no reason why an earlier break could not have been taken and Rosie allowed to have a normal night's sleep. If the police intend continuing an interview to the next day, appropriate time and facilities for rest should be provided. That was not done on this occasion.

There is some conflict of evidence regarding the break taken at 1.30 a.m. It was certainly at Sen's direction. He said that he intended to resume the interview in the morning and he told Rosie this. She says that she was not told how long the break was to be for. Neither Kumar nor Malti said that the break was to be for any stipulated period. However, there is no dispute that during the period of the break Rosie was required to stay in the same room. She remained in the same chair. The only other item of furniture available was a wooden bench. I accept her evidence that at this time she was "tired and exhausted". That is just common sense. She put her arms on the table, laid her head on her forearm and tried to rest. Many local people are very adept at sleeping in spartan conditions. However, for a woman of Rosie's age, who was accustomed to sleeping in a bed and had been subjected to a long interrogation these facilities were inappropriate for proper rest. Any sleep would have been from fatigue and not from comfort. All these matters add to the pressure put upon Rosie in the whole course of the interview.

The interview resumed at 4.30 a.m. after a break of only 3 hours 20 minutes. There is a conflict of evidence as to whether this resumption was at the request of Rosie or insisted upon by Sen. If, as she says, Rosie was unable to sleep there would have been little benefit for her in continuing the break. The interview then continued for a further 2 hours 35 minutes until 7.05 a.m. During this period the statements of seven people regarding their knowledge and sightings of Intaz Ali were put to her. This was very firm interrogation and she was regularly asked whether those people were telling lies.

After a break of 25 minutes the interview resumed at 7.30 a.m. and continued without a break for 4 hours 40 minutes until 12.10 p.m. This is the crucial period of the interview. Until then Rosie had strenuously denied matters put to her regarding the disappearance of Intaz and her association with Sarwan. After 10 questions had been asked and answered, Rosie suddenly changed her attitude and confessed her involvement.

Rosie said in evidence that because of the length of interview, remaining seated in the chair for so long and not having sleep she was "tired, exhausted and had body pains". Before this session of the interview commenced Prasad came into the room and spoke to her. He said that the Police knew that Sarwan had done the killing and if she said this she would be let free. Shortly after the interview recommenced Sen asked if she would say that Sarwan did the killing. Rosie said that she did not reply and Sen left the room. When he came back he was very angry and he again asked if she would say that Sarwan did the killing. She did not reply. Sen suddenly punched her in the ribs and said "Don't you remember what Santa has told you to say". He punched her again in the ribs and the low back. Rosie said that Const. Kishor Kumar also entered the room and hit her near the left ear. She began to cry. She told them she would say whatever they wanted. She was "very scared by the assaults" and then answered their questions "because of the threats and in fear". Rosie also said that Sarwan was later dragged into the room for a confrontation with her.

All these allegations are denied by Sen, Kumar, and Malti. They said in evidence that Santa did not speak to Rosie and she was not threatened or assaulted. She made the confession freely.

Counsel for the prosecution submits that the police evidence is reliable. There were no assaults and no pressure was put on Rosie. She says that pressure was put on her to say that Sarwan did the killing. Yet she made a statement that also incriminated herself. She made no complaint to the senior police officers Sup. Marika Sau and Asst. Commissioner Qalo Butatiko who spoke to her. Nor, if the medical report is admissible evidence, did she complain of injuries to the doctor at CWM hospital.

Lack of prior complaint and raising an allegation of police brutality for the first time at trial are often matters that militate against the credit of the allegation. However, it could be that a person who has been threatened or assaulted may be fearful or reluctant to make a complaint in the presence of the very people who have done the threatening or assaulting. That could extend to a doctor doing a medical examination on the direction of and in the presence or near presence of those same people. In this case there is not a total lack of prior complaint. Rosie complained to her solicitor, Mr. Raza, and he advised the presiding Magistrate of these instructions at the first court hearing. On admission to prison Rosie was asked by Sgt. Major Talawadua whether she had any requests or complaints. Rosie replied that she had been assaulted by the Police. These statements to others are not evidence that the assault occurred but show some consistency with the testimony she gave and show that the allegations are not a recent invention.

When counsel for Rosie outlined the grounds of objection he referred to the alleged physical violence as being "minor assaults with the fists". That accords with Rosie's evidence. It was not a gross battering. She alleges that she was punched a few times. Visible injuries or continuing effects would not necessarily be caused. Further, Rosie is a small woman of slight built. A very moderate degree of physical force could affect her.

A further matter of some interest is the timing of the confessions by both accused. Allied to that is the role played by Prasad. The police strongly suspected that the two accused killed Intaz but they had no evidence of this. Both were interviewed at length and both denied involvement. Both interviews were suspended about 7 a.m. which is the usual time for the police briefing on the case. Both accused allege that they were each seen by Santa before the next period of interview commenced and a threat was made. Both allege that physical pressure was applied by the interviewing officers. Rosie made admissions. Sarwan says that when he continued to deny Santa came back into the room and made further threats. This was the longest continuous interview period for both of them without a break. Both made confessions during this period. Is this all pure coincidence? Is it all a concoction on the part of both accused as the prosecution submits? Or could it be the police plan, engineered by Santa, to put pressure on both accused at this time to extract a confession?

I do not overlook the fact that this was an interview of Rosie in relation to an allegation of murder. I accept that the police can legitimately seek to obtain a confession from a suspect and such confession need not be spontaneously or immediately volunteered. I have carefully weighed and evaluated the evidence relating to this period of the interview of Rosie. Despite the evidence of the police officers that nothing untoward occurred, it is difficult to dismiss the defence allegation that undue pressure was exerted on Rosie and this caused her change of attitude.

During the break commencing at 12.10 p.m. the police took Rosie to her home for a reconstruction of the alleged offence. The interview resumed at 2.15 p.m. and was completed at 3.10 p.m. It was then read back. After that a few further questions were asked and the interview was finally concluded at 5.05 p.m. It had lasted for a total period 32 hours 5 minutes being 21 hours 12 minutes of interrogation and 10 hours 53 minutes of suspensions.

The question to be determined is whether, in view of all the foregoing facts, it can be said that the prosecution has proved that Rosie's statement was made voluntarily. Particularly, this relates to the confession that commenced during the period of interview from 7.30 a.m. to 12.10 p.m. on the 14th October 1994 and then continued until the end of the interview.

Some of the matters that I have discussed are undisputed facts. Some rely on the evidence of Rosie. On some issues she did not impress as a truthful witness. Like Sarwan, she was always careful to distance herself from any incriminating admissions she was alleged to have made. Her evidence, for instance, that she only answered 'yes' to incriminating matters put to her is quite inconsistent with the form and content of the record of interview. However, she has been consistent in her allegations of pressure and force that were applied to her and there is some other evidence that is consistent with her allegations.

I particularly have regard to:

- The extraordinary length of the interview which was entirely controlled and directed by Sen.

- The nature of the interview. Rosie was not making a statement. It was a prolonged interrogation in which the form of many questions was tantamount to cross examination. Such questioning could be oppressive, particularly if continued for long periods.

- The unnecessary and irrelevant first part of the interview that was done with questionable motives. It was quite unfair for Rosie to be interrogated on these previous incidents and criminal charges from 9 a.m. to 6 p.m. This was an oppressive tactic.

- The continuation of the interview through substantially the whole of the night of 13/14 October. A significant break for nightly rest was not taken until 1.30 a.m. which is well after the normal time for beginning a night's sleep.

- When this break was taken at 1.10 a.m. no adequate amenities or facilities were provided for Rosie to rest and sleep.

- Rosie was effectively denied a normal nights sleep.

- The detrimental effect of such long, continuous confinement in the interview room, sitting on a chair. Drowsiness, exhaustion and body pains as described by Rosie would be expected.

- By the time the admissions were made by Rosie she had been interviewed for the best part of a whole 24 hour day.

- The allegations of physical assaults which cannot be excluded and could have coerced Rosie into making the admissions.

- The age and very slight stature of Rosie. She is not a robust woman.

The cumulative effect of all these matters shows the exercise of their power by the Police in a harsh and burdensome manner. It leads me to the conclusion that Rosie could have been subjected to oppression that overcame her free will. I am not saying that she has positively proved such oppression. That is not required. The onus is on the prosecution to prove beyond reasonable doubt that the statement was made voluntarily. That standard has not been achieved and the statement must therefore be rejected.

The visit to Rosie's house during the afternoon of the 14th October 1994 when she made further admissions, was undertaken during the caution interview. It is inextricably part of that interview and must also be excluded. The charge statement is so interrelated with the caution statement that it must also be rejected. With the exclusion of the caution statement, the admissibility of the medical report from the doctor at CWM Hospital now becomes a non-issue. It is no longer relevant.

It is not necessary to deal with the further defence submission that the statement was obtained unfairly. Some of the matters I have already mentioned have elements of unfairness. There are further disputed issues that would need to be resolved. For instance, would Rosie who had instructed a solicitor, paid a deposit and been given a letter to hand to the police, have declined an offer to contact a solicitor? There was unfairness but a definitive ruling on this ground is not necessary.

For the reasons given, I rule, in respect of the first accused Prabha Wati, that the evidence of the caution statement, the visit to her home with the Police on the afternoon of the 14th October 1994, the charge statement and the medical report provided by a doctor at CWM hospital on 15th October 1994 is all inadmissible.

Finally, I would like to say that I have not come to these decisions to exclude the statements of both the first and second accused lightly. It has only been after a very careful consideration and analysis of the evidence and legal issues. Although appropriate and in accord with the evidence, these rulings are made with some misgiving. As I have already indicated, I do not accept all the evidence and allegations of both accused as true but I am unable to reject it on some vital matters. Moreover, having regard to the contents of their statements, it is possible that they committed a heinous crime which may now lack proof. But the truth or otherwise of their statements is not in issue on the voir dire. It is simply a question of onus of proof. The voluntariness of the statements has not been proved beyond reasonable doubt. A decision based on some lesser standard may well have been different.

No publication of any part of this decision is to be made until the final determination of the charge against both accused.

Justice D.B. Pain

HAC0006D.95S