State v Chand [1998] FJHC 218; HAC37.1997 (25 November 1998)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 37 OF 1997

THE STATE

V

ASHOK CHAND

Counsel : Mr P Petaia for the State
Ms T Jayatilleke for the Accused

Voir dire: 13th to 24th November 1998

Ruling : 25th November 1998

ORAL RULING OF PAIN J. ON ADMISSIBILITY
OF CAUTION AND CHARGE STATEMENTS

The defence challenges the admissibility of the caution interview and charge statement. Evidence been heard on a voir dire in the absence of the assessors.

The sole ground of objection raised by counsel for the defence is that the statements of the accused were not voluntary. They were extracted from the accused by oppression exerted upon him by the Police officers.

In evidence, the accused said that he was taken to the Police station and an interview was commenced in the Crime Sergeant’s room. The interviewing officer (Inspector Adi Sen) and the recording officer (Detective Constable Raj Kumar) were seated at a table and he was required to stand. The interview commenced and he was asked general questions about himself, his relationship with the deceased and his movements on the day and evening that the deceased was killed. He was then given a meal and rested for a while. Then the door and the windows of the interview room were shut and the curtains were drawn. The accused said that Inspector Adi Sen accused him of killing the deceased and he denied any knowledge of it. He was then subjected to continued assaults and abuse by Adi Sen and Constable Nacani over a prolonged period. They punched him, pushed him against the wall, twisted his arm and fingers, stripped him of his clothes and sqeezed his testicles. Constable Nacani rubbed raw chilli on his private parts and rectum. Showed a live frog to him and threatened to put this in his mouth. Adi Sen forcefully impressed the accused’s finger upon a louvre blade to leave a print and also forcefully imprinted the accused’s fingerprints on to a fingerprint form. Detective Constable Raj Kumar remained present and was writing something. Then Inspector Sen and Constable Nacani threatened him and forced him to sign some papers. They were not read to him and he did not know what they were. He was then allowed to dress himself. He said that Inspector Sen left the room and returned with Constable Davendra Kant, Detective Corporal Jai Raj (the charging officer) and another police officer. The accused said he was then threatened and hit by Davendra Kant, Nacani and Adi Sen. He was in great pain and was forced to sign some more papers. The accused said that all these assaults and abuse continued throughout the day and until about 10 at night. He said he was then taken to the crime scene, returned to the Station, was then taken to the hospital for medical examination and finally returned to the Police Station and was locked up.

Eight Police Officers gave evidence and they said that the accused was not threatened or assaulted. He was interviewed by Inspector Adi Sen and Detective Constable Raj Kumar in a regular and proper fashion. They deny the allegations of assault. The three of them were seated at a table at the Crime Sergeant’s office. The accused voluntarily answered questions which were recorded by Raj

Kumar. He was given lunch and dinner. The accused voluntarily gave his fingerprints which were compared by Sgt. Krishna with a lift of a fingerprint. After further questioning, the accused was taken to the crime scene and answered further questions. On return to the Police Station, the interview was completed, the record read over to the accused and he signed it. Constable Nacani said that he was never in the interview room and did not assault or threaten the accused. Constable Davendra Kant said that he was off duty on that particular day. He was called to the Police Station to hand over a file to ASP Santa but was only there for 10 minutes. He was never in the bure or the Crime Sergeant’s office where the accused was interviewed. Detective Corporal Jai Raj and Detective Sergeant Rajesh Kumar gave evidence that they were called from Suva to charge the accused. This was done in a regular fashion. The accused made a voluntary statement that was recorded and signed by him.

The onus is upon the prosecution to prove beyond reasonable doubt that the caution and charge statements were voluntarily made by the accused in the sense that they were not 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 A C 599; R v Rennie 74 Cr App R 207; DPP v Ping Lin 1976 A C 574 (P.C.) and Kamlesh Lata v Reginam (Fiji Court of Appeal, Crim Appeal No. 71 of 1983). In the context of this case, that means proof that those statements were not obtained by oppression exerted upon the accused. Oppression can take many forms such as violence, threats, compulsion, intimidation, undue pressure or oppressive questioning. Such conduct would amount to oppression if it "tends to sap, and has sapped, that free will which must exist before a confession is voluntary". (R v Priestley (1965) 51 Cr App R 1). For a statement to be voluntary, it must be proved that the will of the accused was not overborne by some other person when he made it.

An added dimension in this case is that the accused is effectively saying that, except for the initial part of the interview he did not make any statements at all. He was forced to sign two separate sets of papers which must be the records of the caution and charge statements. However, he was not asked the questions and did not give the answers recorded in then. In this situation, I must determine whether, if the statements were made, they were made voluntarily. The two aspects of voluntariness and whether the statements were actually made at all may be interwoven, but it is not the duty of the trial judge to make an express finding on the voir dire of what statements were actually made by the accused. That issue and what weight, if any, is to be given to the statements must be left to the assessors if the evidence is admitted (Thongjai v The Queen and Lee Chun-Kong v The Queen [1997] UKPC 31; 1998 A C 54 (P.C.)

In this case there is a direct conflict between the accused and the police officers. Issues of credibility necessarily arise. I have considered all the evidence and come to a clear decision on the matter but only brief reasons need be given. It is not appropriate for extensive reasons to be given for a ruling on a voir dire. (Wallace & Fuller v Reginam [2002] EWCA Crim 2891; 1997 1 Cr App R 396 (P.C.). There is a need for restraint at this particular stage of a trial before assessors (Ganga Ram and Shiu Narayan v Reginam, Fiji Court of Appeal Criminal Appeal No.46 of 1983). However, some brief reasons may be desirable should there be an appeal (Thongjai v The Queen-supra).

I am totally satisfied that whatever the accused said during his caution interview and charging was said voluntarily and was not the result of oppression as alleged. He was not overborne or subjected to conduct by the Police officers that sapped his free will.

In coming to this decision I have considered and evaluated the separate evidence of all the witnesses. There are conflicts and inconsistencies that have been carefully assessed and findings on credibility have been necessary. There are also other facts and circumstances that are significant. It would not be appropriate for me to elaborate upon all these matters in detail but I mention a few, by way of example. The accused asserted that his fingerprint was forcibly placed on a louvre blade on the 9th of December 1994 yet Sergeant Paulo Meli has already given evidence in this trial that he photographed the fingerprint on the louvre blade on the 5th of December 1994. The form and contents of the charge and caution statements with particular reference to times and sequence of events are consistent with proper practice and inconsistent with the accused’s allegations. For instance, the accused’s evidence of a prolonged assault and a "walk-through" at the crime scene after the completion of both statements which contain reference to the "walk-through" and the arrest of the accused. The medical report of the examination of the accused does not record specific complaint or findings that would be expected after a prolonged battering over many hours as alleged by the accused. Detective Corporal Jai Raj and Detective Sergeant Rajesh Kumar were both from the Serious Fraud Office in Suva and had no part in this investigation. They were called to the Navua Police Station at night to specifically charge the accused and gave very credible evidence as to what occurred. Although a Policeman, Constable Pradeep Kumar’s evidence of meals given to the accused and his observations of the fingerprint comparison was cogent and had an independent character.

There are many other facts, circumstances and items of evidence that are significant but I need not elaborate further.I have probably already said more than is necessary or desirable.

I rule that the evidence of the caution interview and charging of the accused is admissible in this trial.

Justice D B Pain