State v Chand [2004] FJHC 483; HAC0014.2004L (14 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0014 OF 2004L

THE STATE

V

HEMANT CHAND

Counsel: Mr. S. Qica for the State
Mr. G.P. Shankar for the Accused

Hearing: 13 & 14 October 2004
Ruling: 14 October 2004

RULING ON A TRIAL WITHIN A TRIAL

The accused objects to the admission of his record of interview conducted on 31^st January 2002 into evidence.

The grounds of objection are that, he was threatened and assaulted in the course of taking the record of interview and further that he was arrested at Tavua and his rights were not given to him upon arrest in accordance with the provisions of the constitution.

The grounds upon which a confessional statement can be excluded from the evidence, are either that they are not voluntary or they were obtained unfairly and in breach of the rights given to persons in police custody, under section 27 of the Constitution.

In relation to voluntariness, breaches of the Judges’ Rules are relevant but do not determine what is voluntary. The real question under principle (e) of the preamble to the Judges’ Rules is whether the statement is 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.”

Oppression is something which “tends to sap and has sapped that free will which must exist before a confession is voluntary.”

As to breaches of the Constitution, section 27(1) and (2) provide as follows:

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

(a) To be informed promptly in a language that he or she understands of the reason for his or her arrest or detention and of the nature of any charge that may be brought;

(b) to be promptly released if not charged;

(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;

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

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

(e) to challenge the lawfulness of his or her detention before a court of law and to be released if the detention is unlawful; and

(f) to be treated with humanity and with respect for his or her inherent dignity.

(2) The authorities holding a person who has been arrested or detained must promptly take all reasonable steps to inform his or her spouse, partner or next-of-kin of his or her arrest or detention.”

A failure to comply with section 27 of the Constitution will result in the exclusion of evidence so obtained unless the court is of the view that it would be fair and just to include such evidence. In R v Goodwin (1993) 2 NZLR 153, the accused was kept at a police station for questioning in relation to the death of his baby daughter. He was later convicted of her manslaughter. On appeal, it was argued that the trial judge had wrongly admitted his statements to the police.

The Court of Appeal held that for the purposes of section 23 of the Bill of Rights Act, the appellant was under arrest when he was being questioned because he was not free to go as he pleased. The appellant was therefore entitled to the rights under section 23 of the Act. On the question of the effect of beaches of the Bill of Rights, the Court of Appeal said exclusion of the confession did not automatically follow. At p.171, (per Cooke P) the Court said:

“New Zealand cases have already yielded a number of examples of good reasons for departing from the prima facie exclusion rule. They include or may include waiver of rights by the person affected; inconsequentiality, in the sense that the court can be satisfied that the admission would have been made without a breach; reasonably apprehended physical danger to the law enforcement officer or other persons; other reasons for urgency such as the risk of destruction of evidence; and the triviality of the breach if it is only a marginal departure from the individual’s rights.”

In that case, the confession was held to be wrongly admitted because of the breach of section 23 and because the questioning had taken the form of “sharp cross-examination” of the appellant. In R v Kirifi [1991] NZCA 111; (1992) 2 NZLR 8, an accused person had been apprehended and handcuffed to a fence before he was interviewed by the police. He was not told that he was entitled to have a lawyer present until the interview was almost over and he had already made admissions. The trial judge excluded the admissions on the ground that there had been a breach of the Bill of Rights in relation to the right to counsel.

The Court of Appeal said that he was right. The Court said that the section 23 right to counsel, which applied to all persons “arrested or detained”, was not limited to persons who had been formally arrested. It covered a situation where a suspect was, in effect, in police custody, although he had not been formally arrested. There was a breach of the right to consult a lawyer, and the admissions were properly excluded. The Court said at page 12:

“It seems to us that, once a breach of section 23(1)(b) has been established, the trial judge acts rightly in ruling out a consequent admission unless there are circumstances in a particular case satisfying him or her that it is fair and right to allow an admission into evidence.”

In R v Mallinson [1992] NZCA 163; (1993) 1 NZLR 528 (referred to with approval by the Chief Justice for Fiji in Mul Chand Labasa High Court Case November 1999) the New Zealand Court of Appeal held that the onus was on the prosecution to show firstly that the suspect had been told of his right to consult a lawyer before the questioning began, and secondly that the suspect understood the substance of the right and that the exercise of the right would have been implemented if he chose to exercise it. However evidence that the right had been advised, normally led to an inference that the suspect understood the nature of the right.

In that sense Mallinson was not told of this right until an hour after his arrest, but before he was interviewed. His interview was excluded, and the jury directed to acquit. On a case stated to the Court of Appeal decided that the right to consult a lawyer, and the right to be informed of that right, arose on arrest, and the right must be communicated immediately after arrest and before “the legitimate interests of the person who is arrested are jeopardized.” The police have a duty to inform the suspect of this right but no particular formula is required as long as the suspect knows he may exercise the right before questioning begins.

The Court of Appeal held that where he had been told of the right to a lawyer before questioning began, the proper inference should have been that he understood that the rights were exercisable immediately and before questioning began. Thus the trial judge should not have excluded the statements, and a new trial was ordered.

In R v Butcher [1991] NZCA 135; (1992) 2 NZLR 257, Cooke P said at p. 266:

“As indicated in Kirifi, there may be circumstances in a particular case where, despite some degree of transgression of the rights, it is fair and right to admit a confession in evidence ..... prima facie however, a violation of the rights should result in the ruling out of evidence obtained thereby. The prosecution should bear the onus of satisfying the court that there is good reason for admitting the evidence despite the violation.”

In The Queen v Thompson [1893] UKLawRpKQB 74; (1893) 2 QB 12 Cave J. at p. 18 said:

“I would add that for my part I always suspect these confessions, which I suppose to be the offspring of penitence and remorse, and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner’s guilt is otherwise clear and satisfactory; but, when it is not clear and satisfactory, the prisoner is not unfrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession; - a desire which vanishes as soon as he appears in a court of justice.”

In Cleland v The Queen 151 CLR at p.15 Murphy J. of the Australian High Court said:

“The voluntariness of a confession is suspect if it is obtained by interrogation rather than being volunteered, of it, although volunteered, the procedure involved interrogation; if the confessor was in custody, lawful or otherwise; or if anything suggests inducement by threats, promises, false representations or other trickery. Because of circumstances appearing from the evidence, a judge may treat a confessions as suspect for involuntariness (even

if this was not asserted by the accused because he denies making it).

If the accused within custody the trial judge must be satisfied that, notwithstanding that the accused was under the control of the police or other custodians, the confession was voluntary. If there is suspicion of threats or other inducement, the judge must be satisfied that there were none, or that these did not operate by way of inducement.”

Also in Cleland Deane J. at p. 18 said:

“At common law, a confessional statement is not admissible in evidence against an accused unless it be established that it was voluntarily made....If the making of such an alleged statement has been procured or influenced by unlawful or improper conduct on the part of law enforcement officers, that circumstance will be of relevance on the question whether the confession was voluntary. It will also, if it be established that the confession was voluntary, give rise to a subsequent question whether, in the discretion of the trial judge, evidence of the alleged confessional statement should be excluded for the reason that the reception of such evidence would be unfair to the accused: in this regard, the question is not whether the accused was treated unfairly; it is whether the reception of evidence of the confession would be unfair to him.”

In Collins v R [1980] FCA 72; (1980) 31 ALR 257 Brennan J. of the Australian High Court, cautioned that it was important to ensure that a court does not tease out some fanciful meaning from or attribute some extravagant effect to what is said by a person in authority. When commenting on the observations of Lord Morris in DPP v Ping Lin, His Honour said:

“What His Lordship emphasizes is the importance of ascertaining all of the facts which may bear upon the confessionalist’s state of mind, and the importance of a practical commonsense assessment of the effect of those facts upon his mind. But the issue of voluntariness is not to be regarded as a mere problem of semantics: it is not resolved by a simple inquiry as to the meaning of the words used by a police officer (or other person in authority). An assessment must be made of the effect of the verbal and non-verbal conduct of the police officer (or other person in authority) upon the will of the confessionalist in the circumstances in which the confession is made. If the evidence does not show that the confession was made in the exercise of a free choice by the confessionalist to make it, the confession is inadmissible. As the means by which a confessionalist’s will can be overborne are various, one cannot postulate in advance of particular cases the extrinsic circumstances which will necessarily result in the exclusion of a confession as involuntary, or which will inevitably prove insufficient to found a challenge to its voluntary character.

When all the facts are ascertained then in a commonsense way the court must find whether or no the will of the particular confessionalist was overborne.”

The principles governing exclusion require the asking of the following questions:

1. Was the interview/charge statement given voluntarily?

2. Was it given in oppressive or unfair circumstances?

3. Was there a breach of the rights under section 27 of the Constitution?

4. If there was a constitutional breach, is there anything in the evidence to show that the prima facie exclusion rule should not apply?
   

In considering all these questions, the onus is on the prosecution to prove beyond reasonable doubt, voluntariness, lack of oppression, no breach of the Constitution and, if there has been a breach, to show that the breach was inconsequential and did not result in unfairness or oppression.

I turn now to the evidence.

Evidence was given to the court by Acting Corporal Arvind Kumar, whose evidence was that he has been in a Police Force for 15 years, crime for 8 years and he was the officer who conducted the record of interview. He said he told the accused that his right to consult a lawyer. He said the accused did not complain of having been assaulted before, during or after the record of interview. The accused appeared normal and he did not see any visible injuries on the accused. No force, promises or inducement were given or held out for the accused at the time of the record of interview. That he read the record of interview to the accused and he asked if it was correct.

The accused signed the record of interview and he says that not only did he not assault the accused, he did not see anyone else assault the accused.

In the cross examination when specifically referred to question 63 and it was to put to the officer that he, the accused, told the officer that he has stopped at the junction, the officer said no and what he said was recorded. He maintained that position under further cross examination.

When specifically referred to question 54 of the record of interview and again when it was put to him that the accused said he stopped, he again said no, what he said is what is recorded. Similarly, when referred to question 62 of the record of interview.

The second witness is DC 2408 Arvind Prakash. The evidence of this officer relates to the charge statement which is not being challenged and accordingly I will not refer to that evidence.

Police Officer, DC 1122 Francis Naqesa, gave evidence of being a police officer for 17 years. That he was in the CID in 2002 but he was instructed to attend the scene of an accident on the Kings Road. He first saw the accused at the Tavua Police Station. That he was in company with Inspector Arun Kumar. After going to the scene, went to Tavua Police Station. The accused came from Tavua Police Station in their company to Ba Police Station, arriving there at about 5.30pm. The accused appeared normal.

He was kept in the charge room initially and then transferred to the crime office for interview. He was at no time locked in the cell and that he did not assault the accused. He did not assault the accused and he did not see anything assault the accused. That there was no complaint by the accused of any assault and he did not see any visible injuries on the accused. He says in his evidence that member of the accused family came to see Inspector Arun Kumar. That there was no complaint of the assault.

The accused was released that night by the Inspector. In the cross-examination, he acknowledged that the accused was arrested at the Tavua Police Station.

Detective Inspector Arun Kumar, gave evidence of being a police officer for 29 years, the crime officer at Ba for the past 4 years. That he went with officer, PC Francis Naqesa to the scene. He accompanied him to the scene and then to Tavua Police Station. The accused was brought from Tavua Police Station to Ba Police Station. He denied having assaulted the accused at Tavua Police Station or having seen anybody else do so. Similarly, he denied having assault him or having seen anybody do so. They arrived at Ba Police Station at about 5.00pm and he was left in the charge room. He was later taken to the crime office for interview. He was released at about 10pm that same day. He again said, he did not assault the accused or see anyone do so.

In answered to a specific question as to whether he assaulted the accused during the record of interview, after the record of interview or see anybody do so, he said in answer to those questions, no. He says there was no complaint by the accused and no request by him to see a doctor. There were no visible injuries and he appeared normal.

In the cross-examination, he too acknowledged the accused was arrested at Tavua. In cross-examination, he acknowledges that he was in his office when the accused was interviewed in the crime office. He denied in cross-examination, having punched several heavy blows to the side of the stomach of the accused.

The officer who drove the Inspector, the investigating officer of the scene also gave evidence.

The accused gave sworn evidence in which he says he is 24 years of age. He doesn’t read or write English or Hindustani. He says he was assaulted and threatened in the course of the record of interview at Ba Police Station. He says Inspector Arun Kumar threatened him and that officer, Arvind, assaulted him. He says he has a family lawyer at Tavua and was not advised of his rights on arrest at Tavua.

In cross-examination, when details of the assault was sought, he says he was assaulted in the ribs, on the right hand side. He was punched two times, one not very hard and the second harder. He says he didn’t complain. He thought more assaults would occur. He didn’t ask the police to see a doctor. He didn’t make any complaint when he appeared before the Ba Magistrates Court but says in answer to questions by the court, that he instructed his then counsel’s law clerk that he had in fact been assaulted. That fact was not made known to the court nor is there any evidence apart from the statement of the accused before this court.

Conclusion

The burden rests with the State to prove that the confession was voluntarily made, that there was a lack of oppression and that there was no breach of the Constitution or of the Judges’ Rules.

The accused alleges that he was punched in the right ribs twice, the first time not very hard, the second time harder. He did not complain then or when he appeared before the magistrate but says he informed his then counsel’s clerk. No such statement is produced to this court. No request was made by the accused for a medical examination.

The allegations of assault are denied by the officers who were present at the time and against whom the allegations were made, that is Inspector Arun Kumar and DC 2043 Arvind Kumar.

I am satisfied that the threats and assault did not take place so as to result in the admission of the confession statement being unfair to the accused.

It is not challenged that the appropriate cautions were administered to the accused prior for the taking of the record of interview, whilst they were not administered immediately on arrest at Tavua. Whilst this is a constitutional breach, I am satisfied that it did not result in unfairness to the accused. The record of interview is admissible.

JOHN CONNORS
JUDGE

At Lautoka
14 October 2004