State v Shankar [2003] FJHC 52; Hac0014R.2001s (11 June 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Cr. Action HAC014.01S

THE STATE

V

ALBERTINO SHANKAR & ANO.

22 May – 5 June, 11 June 2003
Gates J.

Mr. J Rabuku for the State
Ms J. Nair for Accused 1
Ms P. Narayan for Accused 2

RULING ON VOIRE DIRE

Introduction

[1] Albertino Shankar [Accused 1] and Francis Narayan [Accused 2] stand charged on an information with a single joint count of murder. They claim that inculpatory statements attributed to them whilst in police custody were involuntary and fabricated.

[2] A voire dire was held over many days to investigate their claim. This was a claim which the prosecution must negate, that is, it must be proved affirmatively that such confessions were free and voluntary Thompson [1893] UKLawRpKQB 74; [1893] 2 Q.B. 12; Ibrahim v The King [1914] AC 599, at pp609, 610. The prosecution must be able to prove beyond reasonable doubt that the Accused’s statements were voluntary and not obtained by force. Callis v Gunn [1964] 1 Q.B. 495; DPP v Ping Lin [1976] AC 514;.

[3] After empanelment of the assessors and prosecution counsel’s opening speech, evidence was called by both sides. In arriving at my decision on admissibility I have been assisted by counsel’s written and oral submissions. I have considered these and all of the evidence, though I have not referred to every issue raised.

[4] The main allegations were that the Accused had been assaulted by police prior to and during their interviews. Additionally it is claimed their rights had been violated in a number of ways. For instance, no caution was given, and they were not informed of their right to consult a solicitor or that they could consult Legal Aid. They had been unlawfully detained without reason given. They had been held without being taken to court excessively, and the Judges Rules had not been followed. They could not contact relatives or friends and visitors were not allowed to see them.

Arrest

[5] Accused 1 was arrested on 31 March 2001 according to D/Cpl Remesio shortly after 7 am. Accused 1 was in Victoria Parade. Cpl Remesio said he told Accused 1 that he was arresting him for the murder of a Chinese lady at 178 Toorak Road. He said he put his rights to him and told him he need not say anything. Accused 1 was with another man on the street. They all went back to Central Police Station on foot.

[6] The station was busy, but after a wait Accused 1 was taken up to the Crime Office and handed over to D/Sgt Ravin. Remesio said the entry in the station diary recording that Albertino was brought in for questioning meant that Accused 1 was under arrest.

[7] Accused 1 in his evidence said he had felt a touch on the shoulder. This gesture is the preferred police method of bringing to a suspect’s attention that he is then under arrest. It complies with the form of arrest provided for in Section 13(1) of the Criminal Procedure Code. Accused 1 accepts that he was told by Cpl Remesio that Remesio was a police officer. He denied that he was told he was under arrest but said the officer said another officer wanted to question him at the station.

[8] I am satisfied that Accused 1 was brought to CPS under arrest, that he knew why he was brought in, and that he knew the nature of the charge contemplated, namely murder.

[9] D/Cpl Abdul Khan said he was instructed by the Investigating Officer D/Sgt Safiq at 8 am on 31 March 2001 to go and arrest Francis Narayan [Accused 2]. He went to Accused 2’s house in Toorak. He said he told Accused 2 that he was there to arrest him on suspicion of murder of the Chinese lady. He was to go with the officer to the station for questioning.

[10] Abdul said the family were all present in the living room. Accused 2 remained silent. They could all hear what was said and all remained silent. Abdul was acting on instructions and not independently on his own information. He said that the police did not have evidence to prove the charge at that stage. Defence counsel did not pursue with the witness exactly what grounds for suspicion existed at that stage.

[11] Cpl Abdul brought Accused 2 up to the Crime Office, having processed him through the charge room at 8.20 am, and handed him over to D/Sgt Safiq.

[12] Accused 2 in his evidence said Cpl Abdul told him he wanted to take him to the police station “to witness someone and come back”. He said he was not told by Abdul that he was a policeman, though Accused 2 was aware that he was.

[13] I am satisfied that Accused 2 was arrested and was told the reason for that arrest in compliance with his rights under the Constitution [Section 27(1)(a)].

Assaults

[14] Both Accused gave full accounts of inhumane treatment whilst in custody. Accused 1 said that in the course of his time at CPS he had been hit with a stick and a belt. He was punched and slapped and an officer stood on his back. He was sworn at, intimidated and threatened by the police, and at one time his under garments were forced off him prior to further assault. They pricked his fingers with a needle till they bled, and another officer then stepped on them.

[15] Accused 2 said he was attacked by an unknown police constable when he was brought to the station. He was in a police vehicle which was stopped at traffic lights, when this police officer got in. After talking with Accused 2’s escorts, that officer beat Accused 2 on the chest, stomach and side of his chest. Then the officer got out.

[16] In the Crime Office, he was told to take his clothes off. When he refused he was beaten by 3 police officers. He was hit on his chest, face, and side of face near his eyes. He fell on the floor. He was then kicked in the stomach. He was told he had committed murder.

[17] When they came to remove his outer garments forcibly one officer put his leg on Accused 2’s neck, another a leg on his stomach, and another put a leg on his testicles. He was hit on his heels with a stick; he was also hit on the side of his legs, his ribs, and on his back. He was punched on the nose, which bled, and on the mouth and stomach. He kept falling down.

[18] On the ground he was kicked, and he had to block his face. His head struck the wall at one point. His hair was pulled, and his face slapped. His legs were paining and his mouth and tongue was sore. Later he could not eat properly. Accused 1 also said he was unable to eat because of a painful jaw and sore tongue. Accused 1 had sustained injuries to his chest, ribs, and thighs from his assaults.

[19] On 3 April both Accused were taken for medical examinations to the CWM Hospital. Part A of the reports filled by the police gave the times of the request for examination as 15.30 hrs [Accused 2] and 15.35 hrs [Accused 1]. Part B which is the part to be completed by the doctor gives the times of examinations as 15.30 [Accused 2] which seems to be an error and 17.15 pm [Accused 1]. The handwriting is not all the same. It would appear the time of examinations was more likely to have occurred at around 5.15 pm.

[20] The examining doctor, Dr Devina Singh, was not called. She has since migrated to Australia. Her medical reports on the 2 Accused were tendered as exhibits by the Investigating Officer. They are admissible as business records of the hospital under Section 4 of the Evidence Act and following Davendra Singh v The State [1999] 45 Fiji LR 96.

[21] The defence had no opportunity to cross examine the doctor on issues crucial to this voire dire. Nevertheless the reports are clearly admissible. In deciding what weight can properly be placed upon them, it is necessary to consider whether the manner of their completion lends any support to the prosecution’s claim that bona fide examinations were carried out.

[22] Cpl Abdul was present in the hospital cubicle as each of the Accused in turn was seen by the doctor. It was appropriate for the police officer to remain with the female doctor whilst each of the Accused was examined out of handcuffs. It was in the public interest that he do so. The allegation, at that stage, on the Accuseds’ own confessions, was of a harrowing murder at night involving acts of rape. Prudence and security demanded that the doctor be not left alone with either of the suspects: see observations of Shameem J. in her ruling in The State v Abhikash Anil Kumar (unreported) Suva High Court Criminal Case No. HAC.0003.02S 11^th July 2002.

[23] Cpl Abdul said he was at the far end of the cubicle from where both Accused were being examined. He confirms the doctor did not find any injuries on the Accused. The examination involved both Accused taking off shirt and pants.

[24] Accused 1 denied being examined by the doctor. He said he never took his clothes off. She never noted his birth mark. It must be observed however that such mark as Accused 1 spoke of and displayed in court was barely visible or remarkable.

[25] Dr Singh noted Accused 1’s general health condition as healthy, and his mental state as calm. She noted “No visible physical injuries, chest – BL clear, nil murmurs from the heart, and all limbs ROM” (meaning having range of motion).

[26] A similar notation was recorded for Accused 2. In his case the doctor drew specific pictures on the medical report of 2 of the tattoos found on his upper body, one on his left deltoid (at shoulder) and the other on the right mid arm above elbow. Both tattoos would have required removal of shirt for proper viewing and in order for the doctor to draw the tattoos on the medical form.

[27] I am satisfied in both circumstances that the doctor did carry out a professional and bona fide examination of both Accused. I rely therefore on her opinion that there were no visible physical injuries detected on either Accused.

[28] Both Accused were brought back from the hospital and brought separately before Mr Michael Shiu Shankar, a Justice of the Peace. He had been called to the station by the Investigating Officer and saw each Accused in one of the cubicles in the Crime Office.

[29] He said he had made notes of what he was then told. He did not see any injuries on Accused 1. He said no-one came into the office during the interview. Accused did not complain of any police assault or ill-treatment. Similarly he said he saw no injuries on Accused 2. He noted however that Accused 2 had told him he had minor injuries on his leg and hand from a police assault. This witness confirmed that Accused 2 spoke fluently in English, a fluency denied by Accused 2.

[30] I found Mr Shankar a guileless and truthful witness. In answer to my question on whether he had checked the injuries which Accused 2 spoke of, Mr Shankar said he did not know that checking the injuries was part of his duties. But he said Accused 2 did not show him the injuries. Having seen and heard this elderly and avuncular witness one wonders why not. I find no support for the Accuseds’ accounts in the evidence of Mr Shankar. Rather this evidence tends to confirm the doctor’s record of there being no injuries.

[31] Accused 1 said he was threatened that if he complained he would be thrown out of a van and the police would say he was trying to escape. Accused 1 said he did not complain to Mr Shankar the JP because he thought he was one of them, meaning an ally of the police. But through his counsel on 4 April 2003, a complaint of assault was made in open court to the Chief Magistrate. Accused 1 made no other complaints till this trial.

[32] Accused 2 said he complained of his injuries to his father, but his father did nothing about it. He himself did not know what to do and who to complain to, “since he was new”.

[33] Both Accused in their evidence vigorously denied succumbing to their torture to the point where they had been forced to answer police questions on the crime. They maintained they never gave any relevant information linking themselves to the crime. The alleged confessions were just that, alleged and fabricated.

[34] The position is as Townsley J. found in his ruling on the voire dire in The State v Raymond Sikeli Singh (unreported) Lautoka High Court Criminal Case HAC007.99L:

“In short the violence to the accused did not produce one syllable of confessional material, such was their stoicism under torture, but when the time came to sign their records of interview under caution, they say the violence and threat of violence caused them to sign.”

[35] I have not traversed here all of the evidence of the witnesses for the prosecution and the defence. In a ruling on a voire dire observations on credibility are best minimized. I accept the prosecution has discharged its onus of proof on the issue of voluntariness. I turn now to consider whether a discretion is to be exercised to exclude the confessions upon the remaining grounds raised by the defence. On discretionary matters the prosecution does not bear the same onus: The King v Lee [1950] HCA 25; [1950] 82 CLR 133 at pp 152, 157.

Constitutional right to consult a solicitor

[36] Accused 1 in effect admits that at the outset in his dealings with Cpl Abdul in the Crime Office that he was told what he was there for. He says Abdul accused him of committing the offence of murder.

[37] D/Sgt Safiq says he dealt with preliminaries to the caution interview by asking Accused 1:

“Before I ask you any questions and any answers that you make to those questions, I wish to advise you that Do you wish to consult your Solicitor or want Legal Aid or want any of your family members, relatives or friends to be present during the interview?” (Explained)

Accused 1 replied:

“A. I do not want any one except me.”

[38] In Accused 2’s case, with D/Sgt Ravin the order of preliminaries was different. First he asked Accused what language he wished to be interviewed in, second he introduced the interviewing officers, told the Accused what the investigation was about, put the allegation that Accused 2 had caused the death of the female Chinese, and followed it with the caution. The following sequence took place:

“Q.4. Do you understand the nature of cautionary words read to you?

A.4. Yes

Q.5. Do you wish to consult your solicitor or any solicitor from the Legal Aid and if so the consultation will be done here and facilities will be provided?

A.5. No

Q.6. Do you wish to see anyone of your family or anyone of your choice before I ask any question?

A.6. No

Q.7. Do you now wish to sign as an acknowledgement that you understood the nature of allegation, cautionary words and does not wish to seek some advice from solicitors nor want to see anyone of your choice before I ask any question in relation to this allegation.

A.7. Yes

Q.8. At the end of this interview record you will be given an opportunity to go through the content of this interview and add after (sic) or correct anything you may wish. Do you understand this?

A.8. Yes

Q.9. You will also be given a copy of the recorded interview once it is completed. Do you understand this?

A.9. Yes

Q.10. I would also like to inform you that you are under no threat or harm and you are free to ask for any break, rests or refreshments and meals during this interview. Do you understand this?

A.10. Yes.

Q.11. For the purpose of this interview record have you given me your correct name, occupation and address?

A.11. Yes.

Q.12. Before I continue further would you like to raise any matter or do you have any complaints.

A.12. No.”

[39] Section 27(1)(c) of the Constitution provides:

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

(c) to consult with a legal practitioner of his or her choice in private in the place where he or she is detained, to be informed of that right promptly and, if he or she does not have sufficient means to engage a legal practitioner and 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;”

[40] D/Sgt Safiq said he explained what Legal Aid meant. He was adamant that Accused 1 had replied that he did not want anyone to be present. Sgt Safiq’s coverage of the constitutional right is in much shorter compass than how Sgt Ravin handled the matter with Accused 2. The issue however is best approached bearing in mind what was said in Lee (supra at p159):

“It is, of course, of the most vital importance that detectives should be scrupulously careful and fair.”

[41] But detectives are not expected to recite an incantation over every suspect. What is important is that it is made clear, with whatever words are used, to all suspects, some of whom will have no experience of police stations and police procedures, that they can consult their own solicitor, or a solicitor from Legal Aid if they do not have a solicitor or cannot afford one. To use the word “right” in this regard may be thought preferable practice. To fail to use such a word however will not be fatal to admissibility so long as it is clear the suspect was accorded the choice in unmistakeable and simple terms.

[42] It must be borne in mind that the suspects here were aged 17 and 21, had no previous business with the law, and were being held in custody in a murder inquiry. A similar situation occurred in R v Schriek [1996] 2 NZLR 139. Only in that case the suspect McKay had answered the interviewing officer ambiguously “Don’t have a lawyer”. The Court of Appeal considered (at p158) that:

“it may not have occurred to her that she might obtain, without cost, the temporary services of a lawyer not previously known to her specifically to advise her about the present situation.”

[43] I find there was a simple clarity in Sgt Safiq’s question, and no ambiguity in Accused 1’s reply. Having said that, Sgt Ravin’s fuller format is to be preferred.

[44] Though Sgt Ravin did not use the word “right” in his series of preliminary questions, I find an overall fairness in his approach. It was sufficient to meet the spirit of the constitutional requirement, applying a generous construction, as urged by Schriek (at p158) and the Canadian cases, “designed to give citizens the full measure of the fundamental rights and freedoms set out” see too Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260.

[45] As things were in Fiji in 2001, and on the evidence submitted, what the Legal Aid Commission could provide by way of a free service to suspects at police stations then in comparison to what is available now was not made clear. For instance there was no evidence of what advertisements were displayed in police stations, and what information the police had been given, on what had been set up administratively by the Commission in the way of free services. The police must facilitate requests, but they are not agents for the Commission. The prosecution stand by the records of the interviews. The Accused say they were denied solicitors, but said they said nothing incriminatory anyway. No prejudice eventuated therefore from the alleged failure to accord rights. I prefer the police witnesses on this issue, and find that the Accused were accorded their rights to legal assistance, which they declined.

Right to communicate with relatives

[46] Section 27(1)(d) of the Constitution states

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

(d) to be given the opportunity to communicate with, and to be visited by:

• (i) his or her spouse, partner or next-of-kin; and
  
• (ii) a religious counsellor or social worker;”
  

[47] According to the police interviews, both Accused were offered the chance of having their solicitors present. The Constitution [s.27(1)(d)] speaks of “spouse, partner or next of kin”. Neither appears to have been offered “a religious counsellor or social worker”, and because this is a part of the right, the fuller offer should be incorporated into future police preliminary questioning.

[48] Sgt Safiq used the phrase “family members, relatives or friends”; Sgt Ravin included “or anyone of your choice”. Neither officer specifically put the right to have “a religious counsellor or social worker” communicate or visit. But I am sure that the request if made would have been allowed. I do not see any unfairness in what was done here, though I do advocate bringing the fuller option to the attention of the suspect so that a more considered choice may be made as provided for under the Constitution. In any event this point was not litigated by defence counsel.

[49] It was one thing for a suspect not to wish to have next of kin or relatives present for an interview, an event which might conceivably take a few hours. It was quite another choice not to want to see such friendly faces for a visit when you are kept in custody overnight, and if you are to be kept in detention for over 96 hours.

[50] Once it was known that the 2 Accused would have to be kept in custody at least over Sunday and Monday, [1^st and 2^nd April 2003] whilst the post mortem could be conducted and a report, even in verbal form, transmitted to the officers directing the investigation, the rights of the Accused under the Constitution for communication with, and visitation from, a “spouse, partner or next of kin, religious counsellor or social worker” must be afforded. Afforded here means brought to the attention of the suspect so that he or she can elect whether to avail himself or herself of the constitutional right and protection.

[51] No such election or facilitation subsequent to the first day of incarceration, Saturday 31 March 2003, appears to have been discussed with the Accused, or allowed.

[52] Accused 1 was not informed that his grandfather had been informed of his whereabouts. Apparently Accused 1’s grandfather was told that Accused 1 was being held at CPS. Accused 1’s mother was also a suspect on 31 March being held in the same station. There was no clear evidence that Accused 1 had wished to talk to his mother, which request at that time the police might reasonably have been refused on the ground that she was a suspect. He said he wanted to contact his aunt, and this request was declined. I accept that Accused 1 did ask to contact his aunt.

[53] Accused 2’s family all knew of Accused 2’s arrest and that he was at CPS. His father brought him food. It would appear Accused 2 was not informed his father wished to see him when the father visited the station with a food parcel for Accused 2. Simply handing over the food parcel to Accused 2, brought by Accused 2’s next of kin, does not meet the requirements of the Constitution. Once it was known the Accused were to remain in custody they should have been allowed to contact their relatives and to have visits. In view of the extent of admissions made by the Accused on 31 March in their inculpatory statements and the searches conducted, it is unlikely such contact would have interfered with the remaining part of the investigation. I shall return to this aspect further on.

Judges Rules

[54] I have considered the evidence and submissions in relation to claims that the Accused were not cautioned. I am satisfied that both Accused were cautioned in compliance with the Rules.

[55] It is submitted the Accused were not asked if they wished to make statements. This submission appears to have arisen from a misreading of the sequence and effect of Rule III, which details the procedure to be followed when charging the suspect. At that stage, after the earlier interrogation is over and the decision to charge has been made or a person warned that he may be charged, the suspect may elect to make a statement which he can write himself. Such an option does not however have to be given at the commencement of interrogation when the interviewing officer has yet to obtain sufficient evidence for the laying of a charge.

Excessive detention

[56] Section 27(3)(b) and (c) of the Constitution provide:

“(3) Every person who is arrested for a suspected offence has the right:

(b) to be brought before a court no later than 48 hours after the time of arrest or, if that is not reasonably possible, as soon as possible thereafter; and

(c) to be released from detention on reasonable terms and conditions pending trial, unless the interests of justice otherwise require.”

[57] In Schriek, the Court of Appeal had this observation to make (at p153):

“The expression “as soon as possible” in s 23(3) is not absolute. It calls for a reasonable application to time and circumstances: see the decision of this Court in R v Greenaway [1995] 1 NZLR 204, 207 where the judgment continued that the Courts as well as the police could be expected to take whatever steps are necessary to ensure that an arrested person is accorded the rights contemplated by the Act, within the limits of proper administrative and financial contstraints.”

[58] Dr Dhana Gounder had to travel from Lautoka on the Monday 2 April to come to Suva to carry out the post mortem. After the results were available the caution interviews resumed on Tuesday 3 April. Both Accused were charged on 3^rd and taken to court on Wednesday 4^th, 96 hours or so after their arrest.

[59] The investigation involved a very serious crime indeed. It was a pity that arrangements could not have been made to conduct the post mortem more urgently. D/Sgt Safiq said it had happened previously that PMs were conducted urgently on weekends. In this case the weekend intervened, though it is not clear why the PM could not have been expedited.

[60] Had the Accused had their interviews completed on the Monday 2^nd and been brought to court on the morning of Tuesday 3^rd (and not the 4^th), the balance between the administrative constraints of the investigative authorities and the right of the Accused not to be detained for an excessive time without being taken before a court, might have been struck in favour of the prosecution.

[61] In this case however the investigation, whilst the Accused were being detained and prior to bringing them to court, proceeded too slowly. If the suspects had been held for 72 hours only, pending the receipt of an important piece of information, a finding might have been made that it was not reasonably possible to bring them to court earlier, and that they had been brought “as soon as possible thereafter” that is after the expiry of the 48 hours constitutional time limit from time of arrest. However, to hold them for 96 hours was excessive, and the balance is to be struck in these circumstances against the investigative authorities.

[62] Accordingly I rule that the statements made by both Accused whilst in custody on 3 April 2003 are inadmissible. The statements made prior to 3 April 2003 will be admitted.

A.H.C.T. GATES
JUDGE

Solicitors for the State: Office of the DPP, Suva
Solicitors for Accused 1: Legal Aid Commission
Solicitors for Accused 2: P. Narayan & Associates