State v Lingam - ruling 1 [2001] FJHC 33; Hac0010d.2000s (13 June 2001)

Fiji Islands - The State v Lingam - Pacific Law Materials

ass=MsoNormal align=cenn=center style="text-align: center; margin-top: 1; margin-bottom: 1"> IN THE HIGH COU FIJI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 010 of 2000S

STATE

-v-

RAM LINGAM

Mr F. Vosarogo for the State

Mr G. O’Driscoll for the Accused

Hearing: 12th June 2001

lang=EN-GB>Ruling: 13th June 2001

RULING

The Accused objects to the admissibility of his statement to the police, 11th March 1999. The grounds for the objection, are that hhat he asked for his solicitor to be present during the interview but that he was not permitted to contact him, that half the answers in the interview notes are fabricated by the police, that he was threatened with being locked up in custody if he did not sign the interview notes, and breaches of police procedure and the Judges Rules.

A trial within a trial was held to determine admissibility. The Proson called the interviewing officer, Detective Constable Aminiasi Tora. He gave evidence thae that the interview was held between 9.49am and 11am on the 11th of March 1999. The witnessing officer was DC Paula who is presently in Bosnia. The accused was asked if he wanted to have a lawyer present, but he said “It’s O.K.” DC Tora said that the accused gave his statement voluntarily and that there were breaks for refreshments, and to allow the accused, at his own request, to telephone the complainant. He said that the accused was charged by DC Paula and granted bail with a condition that he attend court for the hearing.

Under cross-examination, DC Paula agreed that he had not recorded the breaks for refreshments, aat a “verbal” conversation he had with the accused when then the accused said he wanted to telephone the complainant “because he was going to pay him”, was not recorded in the interview notes.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The accused gave sworn evidence. He said that apart from DC Tora and DC Paula, the complainant was present in the later part of the interview. He said that he had been told by the police that if he insisted on having a solicitor present he would be locked in custody until the hearing of the case. He said that he signed the interview notes in fear, although about half the answers were false and had been made up by the police. He said that the answer to Q3 in particular is fabricated, in that he asked for a solicitor but is recorded as having said - “it’s OK.”

The law on the admissibility of confessionwell-settled. Principle (e) of the preamble of the Judges Rules High Court Act 1978 provideovides:

“That it is a fundamental condition of the admissibility in evidence against any persqually of any oral answer gwer 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.”

Breaches of the Judges Rules, which are rules for the guidance of police officers, “may render answers and statements liable to be eed from evidence in subsequbsequent criminal proceedings.”

The burden of proving voluntariness and lack of oppression, is on the prosecution, and the prosecution must prove these matters beyond reasonable doubt.

The Accused also alleges breach of his constitutional right to a lawyer at tlice station. Section 27(1) of the Constitution provides:

“Every person who is arrested or detained has the right:

(c) &nnbsp;; &nsp;&nbspconspconsult with a legal practiractitioner of his or her choice in private in the place where he or she is detained, to be informed of thght ply an he or she does not have sufficient meat means tons to engage a legal practitioner and the the interests of justice require legal representation to be available, to be given the services of a legal practitioner under a scheme for legal aid;”

The consequences of failure to comply with section 27(1)(c) of the Constitution, were disd by the Honourable Chief Justice in State -v- Mul Chul Chand (Labasa High Court) 22nd November 1999, in his ruling on the voire dire. He said at page 16:

“Like the New Zealand Bill of Rights, our jurisdiction does not have an express remedies section for breach of rights under section 27. In New Zealand, a country that has had long experience of Bill of Rights provisions in this context than in this country, their general approach to this lacuna was stated in the case of R -v- Goodwin (1993) 2 NZLR 153 where Richardson J remarked:

“The Bill of Rights does not contain any express enfort provisions. A statement of fundamental human rights wouldwould be a hollow shell and the enactment of a Bill of Rights an elaborate charade if remedies were not available for breach. On the contrary the premise underlying the Bill is that the Courts will affirmatively protect those fundamental rights and freedoms by recourse to appropriate remedies within their jurisdiction. Traditional remedies include the exclusion of evidence wrongly obtained, stay of proceedings, habeas corpus, damages for false imprisonment and judicial review of statutory powers.”

I accept that it is the court’s responsibility to provide remedies for breaches of the Bill of rights sions where none exist.”

The most appropriate remedy available for an ad person who is deprived of the services of a solicitor and who has not waived his/her righ right to a solicitor before he/she is questioned by the police, is the exclusion of that statement in evidence. It should not be necessary for the accused to allege that the statement was involuntary. A mere breach of the right, if it results in unfairness to the accused (as it would invariably) will result in the exclusion of the statement whether or not the statement is found to be voluntary. The common law power of the court to exclude any evidence which is prejudicial, and where the prejudicial effect of that evidence is not outweighed by its probative value, is the appropriate remedy for breaches of the accused’s rights at the police station. Those rights include a right to be informed of the right to counsel, the right to consult with counsel, and the right if the interests of justice so require, to counsel appointed on legal aid.

A heavy burden therefore rests on the police to ensure that these rights are respected in the course of investigations, both in spirit and in form. No right can be waived, unless the police officer concerned has clearly explained the right to the accused in simple terms. The burden of proving that there has been no breach of the section 27(1) rights, rests on the prosecution.

To turn to the facts of this case, has the prosecution proved beyond reasonable doubt, firstly that the inew was given by the accusedcused voluntarily, and secondly that there was no breach of section 27(1)(c) of the Constitution?

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> There is obviously a great difference between the evidence of DC Tora and the accusC Tora denied threats or any improper conduct in the courseourse of the interview. The accused was in custody, and was bailed on the same day after being charged. The interview notes were recorded in English and reflect an adherence to the Judges Rules. Although the officer did not record the accused’s explanation for wishing to make a phone call to the complainant, it appears from the tenor of the evidence that the conversation was an informal one, and not part of the interview proper. I believe DC Tora when he said that he did not threaten or force the accused to make the statement or to sign it.

As to the accused’s evidence, I note that even after being charged, the accused was not represented in the Magistrcourt at first call, or at r at all until 17th May 1999. I note also that in cross-examination of DC Tora it was never suggested by counsel that he had threatened to lock the accused up until the hearing. We heard that for the first time when the accused gave evidence.

I note that DC Tora conceded that he had not recorded refreshment s, but his concessions, made in a forthright and candid way, strengthen his credibility raty rather than weaken it. Any technical breaches of the Judges Rules do not in my opinion affect the voluntariness of the statement itself.

I am satisfied beyond reasonable doubt that the interview was given voluntarily and without oppression.

In respect of the alleged breach of section 27(1)(c) of the Constitution, I accepTora’s evidence that he told the accused of his right to coto counsel and that the accused waived that right by saying “It’s OK.” The accused in the witness box appears articulate and intelligent, and I am satisfied beyond reasonable doubt that he understood his right, and knowingly waived it. Furthermore the willingness of the police to allow the accused to use the telephone to call the complainant suggests that the police were committed to acting fairly and properly toward the accused. In the circumstances there is no breach of the Constitution.

The accused alleges that parts of the interview are fabricated and that he was forced to sign it. I am satisfied on the evidence, beyond reasonable doubt that he was not forced to sign the statement, and that it is therefore admissible. However, the truth or otherwise of the statement itself, and the weight to be given to the statement, is a matter for the assessors. It is a matter for them to decide whether the statement is true, or whether it is a false fabrication.

In submission, counsel for the accused submitted that because no caution was administered after the break before Question 15, the interview thereafter ought to be excluded. The allegation that no caution was administered after the break, was never put to DC Tora during cross-examination. Nor did the accused give evidence in this regard. In any event I am satisfied that even if no caution was administered that the terms of the caution at the beginning of the interview (which took less than 2 hours) would have been clearly in the accused’s mind throughout the interview.

In summary, the interview notes are admissible may be led in evidence.

Nazhat Shameemn>

JUDGE

At Suva

13th June 2001

Hac0010d.00s