State v Latianara [2008] FJHC 346; HAA070J.2008S (12 December 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 070 of 2008

Between:

THE STATE
Appellant

And:

SALANIETA MARAMA LATIANARA
Respondent

Hearing: 21st November 2008
Judgment: 12th December 2008

Counsel: Ms S. Puamau for State
Mr. A. Vakaloloma for Respondent

JUDGMENT

[1] This is an appeal by the Director of Public Prosecutions against a decision of the Suva Magistrates’ Court to declare inadmissible four records and charge statement of interview of the Respondent. It is an interlocutory appeal. The trial is adjourned pending this judgment.

[2] The Respondent was charged with the offence of larceny by servant. She is alleged with stealing $46,319.83 the property of Air Nauru when she was an employee of that company between the 26th of November 2002 and the 4th of February 2003, at Suva. The trial commenced on the 19th of March 2008 and the State led evidence to prove the voluntariness of the confessions.

[3] The evidence of Detective Inspector Ramen Chandra was that he is specialized in fraud investigation and was appointed investigating officer in the Respondent’s case in 2003. He interviewed her firstly on the 30th of April 2003, then on the 1st of May 2003, then on the 2nd of May 2003 and lastly on the 5th of May 2003. He said that on each occasion the Respondent was not detained in custody, that a woman police officer was present, that the Respondent was told of her right to counsel and her right to silence, and that she was not interviewed in an oppressive manner. He said that the record was accurate and reflected exactly what the questions and answers were. He said that "it is common understanding that interview be suspended when suspect ask." It was suggested to IP Chandra that there had been a "verbal" interview of the Respondent preceding the written interview but he denied this. It was suggested to him that the Respondent had said that she did not know anything about the allegation but the Inspector said the record spoke for itself and he had recorded whatever she had said. The allegation at page 25 of the record was:

"Q. You write questions and answers and ask her to sign and she does?

A. No. It’s all false."

[4] It was alleged that she was not given any meals, that she was not read her statement and that she was not given an opportunity to contact her counsel. These allegations were denied. They were also denied by WPC Priscilla Narayan, the witnessing officer on the 30th of April 2003. She said that the Respondent did not ask to see a lawyer, that no Fijian officer spoke to her, that she read the statements before she signed them and that there was no oppression or force.

[5] Police Sergeant Helen who was witnessing officer on the 1st of May gave similar evidence. Inspector Puran, the charging officer, said that he saw the Respondent for the first time on the day she was charged, that she signed the charge statement and that she had no complaints. It was suggested to him in cross-examination that he had asked the Respondent if she had said her prayers that day and he denied it.

[6] The Manager of Air Fiji, previously the Manager of Air Nauru gave evidence that the Respondent was an employee of the Air Nauru office in 2002 and 2003. He explained how he discovered that there were discrepancies between the tickets issued and the cash received and banked, and that an investigation was conducted. He said that the supervisor in the Suva Office was Salote Railala, and that the Respondent worked under her. He explained how they discovered that total sums banked were not the sums paid by the customers and that on each occasion the tickets were issued either by the Respondent or Salote Railala.

[7] In cross-examination it was suggested to him that all the banking was done by Salote Railala and he agreed to that. He said the Senior Management of Air Nauru decided to terminate the Respondent’s employment. Salote Railala was not dismissed.

[8] The Respondent gave evidence on the trial within a trial. She said that she arrived at the Central Police Station on the 30th of April 2003 with IP Chandra, whom she knew. He asked her if she wanted a lawyer and she said she did and wanted to call him. He said it was not necessary. She said she signed the interview notes without reading them because she was told to sign. At question 37 she said in response to the question: "Now what do you have to say in regards to the allegations that have been put to you?", that she knew nothing about the allegation. The answer recorded is "I admit stealing about $40,000.00 from Air Nauru." In her evidence she said that when she told IP Chandra that she did not know, he called a tall Fijian police officer with a "bit of white hair" who asked her if she went to church and told her she had to admit what she was asked or she would be locked up. From then on, because she believed him, she agreed to whatever Dharmend told her. At page 24 of the record she said: "He only told her to tell him to say where the money was and if relatives could pay up this at Q46...." She went on to say that she did not make any statement at Q57, that her answer was different at Q66, that she was never given a break but was given lunch at 12 noon on the 5th of May. She was not given water, or food, nor allowed to go to the toilet. In relation to the charge statement the answers were already recorded and she simply signed on the dotted line. IP Puran asked her if she prayed and she said yes. He also said to her "Now you are going to see what happen to you." She signed because she was afraid of being put in the cell if she did not.

[9] Under cross-examination it was suggested to her that she had come into the station at 10am, on the 1st of May although she had been told to come at 11am and she said he had told her to come at 10am. She said she was given lunch between 12 midday and 1pm and she said at first it was rice and curry. She then said it was rourou as is recorded at Q259. At page 27 of the record, she said that IP Dharmend was asking questions then writing them down and that she answered them in English. She then said that he in fact wrote everything down and got her to sign it. She said that she wanted a lawyer but IP Chandra would not let her contact him. She eventually contacted a lawyer on the 18th of September 2003. She said that WPC Priscilla only stayed for 30 minutes of the interview, but she could not recall the time she left and the time she came back. She said she wanted to visit the toilet on one occasion but IP Chandra said he was getting late. She could not recall the date of that incident.

[10] The ruling on the trial within a trial was delivered on the 8th of June 2008. After correctly stating the law on the admissibility of confession, the learned Magistrate said that on the 30th of April 2003, the police said the interview did not commence until 12.30pm but that the Respondent arrived at 10am. He found at page 52 of the record:

"There was no evidence to show as to when the accused was taken to the Central Police Station on 30.4.2003. The Police Station diary should show this but it was not even tendered in Court. What happened to the accused from 10.00am to 12.30pm when interview commenced on 30.4.2003 would be anyone’s guess. Was the accused put through a pre-caution interview session? This long delay would be considered suspicious and oppressive... the delay of 2 hours 50 minutes could only confirm the accused assertion that she had gone through a pre-caution interview with a tall dark senior Fijian police officer at the crime room at the time."

[11] The learned Magistrate then said:

"Evidence was given by the accused who stated that when she reached the Central Police Station at 10.00am the interviewing officer Dharmend had first sent her to another dark senior Fijian police officer who then told her to do what Dharmend wanted. Dharmend had denied sending the accused to another senior tall Fijian police officer who was also sitting in the Crime Room."

[12] He then found that the confessions on the 1st, 2nd and 5th of May 2003 followed the same pattern and on each occasion she was asked what she did with the money. Her answer would be "I used it" or "I spent it." He said that the women police officers who were the witnessing officers could not recall the interview or how it was conducted and that the accused had not been free to go but was in detention.

[13] The learned Magistrate then found as a matter of fact that the Respondent arrived at the police station at 10am on the 30th of April 2003 but that the interview did not commence until 12.50pm and that she was not given any lunch. On the 1st of May although the interview was to commence at 11am, it did not commence until 1.30pm. She was interviewed over 2 hours and 45 minutes but only 12 handwritten pages were produced. There was no record of any lunch. On the 2nd of May 4 hours and 30 minutes of interview produced 11 pages of interview notes and no lunch was provided. On the 5th of May 2003, 128 questions were asked and there was a lunch break but no other breaks for refreshment. The learned Magistrate found that the Respondent was not told of her right to counsel when she first arrived at the police station but was instead told of that right at 12.50pm when the interview commenced.

[14] The learned Magistrate said at page 59:

"The accused had alleged that she has gone through a pre-caution interview with a senior tall Fijian police officer at the Crime Room at the Central Police Station. This senior Fijian police officer whose name is well-known to Dharmend had been alleged to intimidate and threat the accused from 10am to 12pm on 30.4.03. I find it surprising that this senior officer was not called by the prosecution to give evidence."

[15] He then found that on the basis of the extra-ordinary length of the interview, the nature of the questions, the pre-caution interview and the failure to explain her rights to counsel, that "the exercise of the powers by police in the conduct of their work ...... leads to the conclusion that the accused had been subjected to oppression and unfair treatment." He then ruled the interviews and charge statement inadmissible.

The appeal

[16] The Appellant says that this conclusion is wrong in both law and fact. However a canvassing of the grounds of appeal and the submissions of State counsel shows that the chief complaint is about the findings of fact on which the learned Magistrate relied.

[17] Principally (as in its first ground of appeal) the State submits that the finding of oppression is inconsistent with the Respondent’s own contention that the interview was fabricated by the police and that she had been forced to sign it.

[18] The State refers to the decision of Ajodha v. State [1982] AC 204, a decision of the Privy Council, in which the law of the admissibility of confessions was discussed. In one such scenario, Lord Bridge (at page 221) said inter alia:

"It may be helpful if their Lordships indicate their understanding of the principles applicable by considering how the question should be resolved in four typical situation most likely to be encountered in practice:

.... 2. The accused, as in each of the instant appeals, denies authorship of the written statement but claims that he signed it involuntarily. Again, for the reasons explained, the judge must rule on admissibility and, if he admits the statement, leave all issues of fact as to the circumstances of the making and signing of the statement for the jury to consider and evaluate."

[19] The decision in Ajodha goes on to paint another scenario:

"3. The evidence tendered or proposed to be tendered by the prosecution itself indicates that the circumstances in which the statement was taken could arguably lead to the conclusion that the statement was obtained by fear of prejudice or hope of advantage excited or held out by a person in authority. In this case, irrespective of any challenge to the prosecution evidence by the defence, it will be for the judge to rule, assuming the prosecution evidence to be true, whether it proves the statement to have been made voluntarily."

[20] The State submits that the defence position changed from an allegation of fabrication (which was a question of weight and not admissibility) to an allegation of oppression. The State says that the learned Magistrate failed to set out the State’s position and the position of the Respondent, relying instead on the evidence of the Respondent which had been severely shaken under cross-examination. This led to a failure to give cogent reasons in his judgment for his decision to exclude the confessions.

[21] The State further submits in Ground 2 that the learned Magistrate erroneously made findings of fact which were not based on the evidence, such as the finding that a tall Fijian officer existed and that the Respondent was in custody.

[22] Counsel for the Respondent submitted that the learned Magistrate’s ruling was correct in law and in fact, and that it was clear from the ruling what the reasons were for the exclusion of the confessions.

Analysis

[23] The defence position was not articulated prior to the trial. This is unfortunate. Any objection to the admissibility of a confession should be taken at a pre-trial conference (if one is held) or at a pre-trial mention, together with the grounds for the objection. This allows the court to understand with clarity what the objection is, so that the correct principles can be applied in the ruling. In this case, the objections only emerged as a result of the cross-examination. They were:

1. Fabrication of the interviews by IP Chandra.
   
2. A signing by the Respondent as a result of pressure and oppression.
   
3. Oppression in the length and nature of the interrogation.
   
4. A failure to give the Respondent her right to counsel.
   
5. A fabrication of the charge statement.
   
6. Pressure to sign the charge statement.
   

[24] The prosecution and defence positions were diametrically opposed to each other. However, what was agreed to by both parties was that the Respondent signed the statements over the period of time recorded in the interviews. The defence said that pre-interview pressure was applied by a Fijian officer. The prosecution said there was no Fijian officer and no pre-trial interview. The defence said that the Respondent was detained. The prosecution said that she was a volunteer. The defence said that the Respondent was oppressed by long hours of detention and no meals or toilet breaks. The prosecution said that the Respondent chose to be interviewed in the way the record specified and that there were meals and breaks. The defence said that the Respondent wanted to see a lawyer. The prosecution said that she waived that right.

[25] The difficulty with the ruling in the trial within a trial is that the learned Magistrate did not specifically say which version of the facts he accepted. Of course it was open to him to accept some parts of IP Chandra’s evidence and reject other parts, but it is not clear that he did that. Nevertheless he seems to accept that a Fijian police officer existed, that he did put pressure on the Respondent and that pressure took place over a period of 2 hours and 50 minutes on the 30th of April 2003. He also appears to have accepted that the Respondent was actually interrogated over the 4 day period and that the interview was not fabricated by the police. He then concludes that the interrogation was oppressive, and that she was under arrest.

[26] Are these findings of fact based on the evidence? If they are, then an appellate court would be reluctant to interfere with them. IP Chandra’s evidence was that he met the Respondent at Waimanu Road on the 30th of April 2003. He was asked if that meeting was at 9am but he did not confirm that. Nor did he agree that the interview commenced at 10am. The record of interview states that the interview commenced at 12.50pm.

[27] The Respondent’s evidence on this point was that she lived in Waimanu Road in 2003 but that she had met IP Chandra at the Air Nauru Office. She said she had gone to the Central Police Station. However in relation to her interview of 1st of May 2003, she said that this interview commenced at 10am and not at 1.30pm as is recorded. She said that it was in relation to the interview of the 1st of May, that she came to the station at 10am. In her evidence-in-chief she had said that this occurred on the 30th of April. She also said in her evidence-in-chief that the conversation with the Fijian officer took place after the formal interview commenced, and at Q37. There was simply no evidence, either from the prosecution or the defence, that the Respondent was subjected to a threatening conversation during a 2 hour wait on the 30th of April. In concluding that such a conversation took place "pre-caution" the learned Magistrate did so on the basis of no evidence at all.

[28] His second finding of fact was that the Respondent was interrogated over a four day period. There was evidence to this effect on the police version of the facts. According to IP Chandra, the Respondent came to the station voluntarily, was free to leave at the end of the day and indeed at any time she wished, that the questioning was not oppressive and that she was given adequate meals and refreshment. The Respondent’s position was that the questioning was tiring, she thought she would be locked up if she did not confess, that she was worried about her children and that she never knew that she was free to leave.

[29] The interviews were conducted on the 30th of April, 1st of May, 2nd of May and the 5th of May. After each day she went home. That was not disputed. If there was no evidence of pressure applied by a Fijian officer before the interviews commenced, then the only evidence on which the court could conclude that there was pressure, was on the Respondent’s evidence. Certainly the interviews themselves which recorded suspensions daily so the Respondent could go home do not point to oppression. Nevertheless the learned Magistrate was entitled to accept that part of the Respondent’s evidence which suggested oppression. She alleged a failure to give meals, refreshments and breaks. Even if she was a volunteer, there were circumstances on which the learned Magistrate could have drawn such a conclusion. The fact that another court might not have done so, is not the issue. That other court (and indeed this court) does not have the benefit of hearing the Respondent on oath. The learned Magistrate clearly believed that she was oppressed by the circumstances and it is a finding with which an appellate court cannot interfere. Certainly, there was evidence before the learned Magistrate which was capable of showing oppression.

[30] However I do accept that there was no evidence of custody. The law on when a person is or is not in custody has not always been clear.

[31] State counsel referred me to the cases of R v. Kirifi [1991] NZCA 111; (1992) 2 NZLR 8 and to R v. Edwards [1991] 3 NZLR 463 the first a decision of the New Zealand Court of Appeal. In the former, the accused was chased by a constable who saw him near the crime scene, handcuffed him to a fence and was later put in a police vehicle and taken to the police station. He was then interviewed without being told of his right to counsel. In court he challenged the admissibility of his interview. It was held that when the police handcuffed him, thereafter he was in custody and his right to counsel had been breached. The exclusion of the confession was upheld on appeal. The Court (per Cooke P) approving the following test for when an arrest has been effected, laid down by Hillyer J in Edwards (at p.466):

"It is settled law that an arrest can occur only where there has been physical seizure or touching of the person with a view to his detention (a mere touch will suffice but presumably the intent must be made clear to the arrestee by words or otherwise) or the utterance of the words of arrest, coupled with acquesance or submission on the part of the arrestee."

[32] In Edwards (supra) the accused was charged with sexual violation and had been taken to the police station by police officers. He was taken in a police car and interviewed in an interview room without a door handle. No one arrested him formally and he was not told of his right to counsel. Hillyer J held that the accused was at the station as a volunteer, and was not detained. There was therefore no obligation to tell him of his right to counsel.

[33] In Fiji, the Constitution (section 27) gives suspects uniform rights whether they are under arrest or not, as long as they are in custody. It is for the court to conclude on the basis of the evidence, whether there is a custody or not. However, the accused’s belief that he or she is in custody is not enough. The police must have done or said something to the suspect in order that the suspect should believe that he or she is in custody.

[34] In this case there was no evidence of a formal arrest. There was no evidence of a detention. Indeed the Respondent went home daily and herself returned to the station daily to subject herself to the interview process. Where was the detention? In relation to the rights to counsel, the Respondent accepted that she was told of the right on the 30th of April but then said that IP Chandra did not let her call Mr. Vuetaki. If that was so, why did she not contact him and call him to the station after she went home that night? And before the 1st of May, 2nd of May and 5th of May interviews? On her own admission, she did not contact him until September 2003. Even if we are to accept that she was not allowed to call him to the station on the 30th of April, her behavior subsequent to the date shows that she never had any intention to call counsel and that whether or not she was given the opportunity to telephone him, she would not have done so. Clearly on the defence version of the evidence, there was no prejudice to her.

[35] I find therefore that the learned Magistrate’s finding that the Respondent was detained for the four day period of the interview is completely unsupported by the evidence. Nor was the Respondent deprived of her right to counsel because she never had any intention to exercise it anyway. His findings in this regard constitute an error of fact.

Consequence

[36] I find that the grounds of appeal (b) and (c) have merits. Ordinarily that would lead to a reversal of the decision to exclude the confessions, and an order that the trial proceed on the basis that the confessions are admissible. However, one of the grounds of appeal is that the learned Magistrate erred in finding that the interviews were obtained by oppression. I have found that he did not so err, because he clearly accepted the Respondent’s evidence about the way in which the interviews were conducted. Because of this finding, the learned Magistrate was entitled to exclude the confessions on this ground alone. Clearly he was not satisfied beyond reasonable doubt that the Respondent was not interviewed in oppressive circumstances.

[37] As I have said I decline to intervene with his finding in this regard. On this finding alone, he was entitled to exclude the confessions.

[38] For this reason, the DPP’s appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
12th December 2008