State v Mohammed [2009] FJHC 224; HAC033.2008B (9 September 2009)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No.HAC 33 of 2008B

BETWEEN:

STATE

AND:

SHEIK MOHAMMED
(f/n Hussein)

VOIR DIRE RULING

The defence objects to the admissibility of an interview conducted under caution which the State seeks to tender as evidence in the trial against the accused. The record of the interview between the accused and the Police was made at Seaqaqa Police Station on the 12th and 13th June, 2008 and contains a confession to the two charges the accused is facing on the amended information.

The defence objects to its admissibility on the following grounds: (and I here reproduce the exact wording of defence Counsel’s handwritten "Grounds of Objection")

"1. That the accused’s right under the Bill of Rights was breached, Especially section 27 of the 1997 Constitution.

2. That the accused was subject to assault and other inhumane treatment.

3. That the accused was induced and tricked by the Police Officers when recording the statement.

4. That the statement was never read to him"

When I asked for further and better particulars of the second ground (assault), Counsel for the accused advised me that his instructions were that he had been slapped, his hair pulled and chillies applied to his anus and eyes.

The Legal Test

The Fiji Court of Appeal in Ganga Ram and Shiu Charan v R.1983 (unreported) outlined the two -part test for the exclusion of confessions at p.8.

"it will be remembered that there are two matters each of which requires consideration in this area. First, it must be established affirmatively by the Crown (sic) beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as the use of force, threats of prejudice or inducement by offer of some advantage – which has been picturesquely described as "the flattery of hope or the tyranny of fear" Ibrahim v R (1914)A.C. 599; DPP v Ping Lin (1976)AC 574.

Secondly, even if such voluntariness is established there is also need to consider whether the more general ground of unfairness exists in the way in which police behaved, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. (R v Sanag (1980) A.C.402, 436CE. This is a matter of overriding discretion and one cannot specifically categorise the matters which might be taken into account."

It is for me to decide therefore whether this interview was conducted freely and not as a result of threats, assaults or inducements made to the accused by a person or persons in authority [in this case obviously the Police]. Secondly, if I find that there has been oppression or unfairness, then I can in my discretion exclude the interview. Finally, if the rights under section 27 of the Constitution (which was then extant) have been breached, then that will lead to exclusion of the confessions obtained thereby, unless the Prosecution can show that the suspect was not thereby prejudiced. Section 27 rights included the right (i) to have a legal representative of his choice and (ii) have access to family or next-of-kin.

The burden of proving voluntariness, fairness, lack of oppression, compliance with the Constitution and (if there is non-compliance) lack of prejudice to the suspect, rests at all times with the prosecution. They must prove these matters beyond reasonable doubt. In this ruling I have reminded myself of that.

The Facts

The accused presented himself on the morning of 12 June 2008 after learning that he was wanted for enquiries into a large seizure of illicit drugs. He went first to the offices of Labasa legal practitioner Mr A. Kohli who agreed to deliver him to the Seaqaqa Police Station. Mr Kohli gave evidence that during the journey to the station he had explained to the accused his rights and advised him not to answer any questions, but if pressed to merely say that he would reveal all in Court. By agreement between the two of them, Mr Kohli did not remain during the interview. However, the accused did tell me he wanted Kohli to stay. Mr. Kohli explained to the accused his rights for a second time and then left. Having delivered the accused to the station, a statement in the form of questions and answers was taken from the accused over that day and the following day.

PW8, D/Sgt 2572, was the interviewing officer who said that the interview commenced that day (12th June ’08) at 12.15pm. It was conducted in the English language with the consent of the accused and continued until 1340h when the accused was served a curry lunch. The interview resumed at 1400h through until 1500 h when a break was taken for rest and water. It resumed again 1515h and ran until 1550h for another rest. The final section of the interview on that day was conducted between 1620h and 1640h when it was suspended at the request of the suspect for rest and for the police to conduct relevant searches. It resumed the following day at 1202hrs after the accused had had breakfast. It concluded at 1420hrs on the 13th June. Present throughout the whole course of the interview were PC3402 Sukhendra Chand as the witnessing officer and ASP Kushi Ram who as a very senior officer was there as an observer, to oversee the interview.

The prosecution called ten witnesses on the voir dire. They were the aforesaid Mr Kohli, a former co-accused Mr Abdul Aiyaz and six Police Officers involved with the investigation. There were also called two witnesses on the request of Defence Counsel, a Rajendra Prasad who drove Kohli and the accused to the Seaqaqa Police Station on the 12th June 2008 and a Mr Nazim Shah, the brother-in-law of the accused.

The evidence according to the Police witnesses was that the accused gave his statement voluntarily, he was fed meals and given appropriate time to rest. Even though the interview was conducted over two days it has never been suggested that this was oppressive. The accused was kept overnight and provided with a mattress and food from outside. They denied any knowledge of assaults, including slapping and application of chillies to the anus and face and they were all in agreement that he was aware of the procedure and signed the document on each page as having read that page’s contents. The senior officer present, an Inspector of Police based at the Regional Crime Office (Northern) lent gravitas to the proceedings and he told me that in his observation he had no reason to doubt the voluntariness of the accused statement and he was satisfied that all his rights had been afforded him .

The two "independent" witnesses were called on the request of Defence counsel. Mr Prasad said that he had driven Mr Kohli and the accused to the station and that he had not gone into the station that morning and was therefore unable to help with allegations on the voir dire. However he did drive Mr Kohli back to the station that afternoon and went inside the station where he saw the accused. He deposed that the accused was resting his head on his arms on a desk and that when the accused realized that he was present he lifted his head up to the ceiling briefly and then re-lowered it. He saw no signs of assault or injury, nor did the accused attempt to communicate with him. Mr Nazim Shah, the accused’s brother-in-law deposed to having collected the accused from the Station on the 13th June when he was released and drove him home. He gave evidence of seeing the officers being angry with the accused in the station and overhearing them saying that he refused to sign. He went on to say that on the car journey home the accused was weak and asked to be taken to the Labasa Police Station. He did in fact go there and came out after a while and told Nazir Shah that he had been assaulted at Seaqaqa. He didn’t elaborate and Shah says that he saw no sign of assault and that there was no need to take him to hospital. Almost as an afterthought he said his eyes were red.

The accused gave evidence under oath. He told of how he had received a call in Suva from his brother in Labasa in June of last year telling him that he was being sought for enquiries into a seizure of suspected illegal drugs found in a truck travelling to Labasa .He decided to go to Labasa and after travelling from Nausori went to Lawyer Kohli’s office. Kohli took him to the Seaqaqa Police Station and on the way explained to him his rights. On leaving him at the station he again explained his rights to him and departed. After a wait of some time he was taken into the Police Bure adjacent to the station. There he was slapped on each side of his face and forced to eat chillies, twice before he spat them out. He then described how one officer took a handful of chewed chillies and putting his hand down his (the accused’s) trousers wiped them around his anus. The accused attempted to clean himself with his underpants but was still in pain. They then started to interview him and the accused then gave evidence to the effect that his will was sapped. He told the Police that he knew nothing about the drugs, had not seen the truck (his sister’s) for 3 to 4 months but the answers in the statement were then fabricated by the Police officer taking the statement. He was refused access to family members and never given a chance to read his statement.
The accused called one witness, Ifraaz Khan. He is a student and recalled going to Seaqaqa on an unknown date to deliver food to his uncle at about 6 to 7pm. He was denied access by the Police.

Analysis

I find that the three Police Officers who gave evidence touching on the making of the caution interview were consistent, confident and experienced and I believe their evidence that nothing improper occurred during the taking of the statement. I further find that the evidence relating to the chillies preposterous. I do not believe that the accused was assaulted at any time while in Police custody. The "independent" witness who gave evidence of the accused telling him he had been assaulted was evasive, reluctant and obviously relating a story he had been coached on. I did not believe him nor do I find him to be independent at all given that he is the accused’s brother-in -law. It is even more a matter of concern that this witness was called by the Prosecution at the request of defence counsel. While I am fully aware that the accused does not have to prove anything, I did not believe his evidence, preferring to believe the coherent evidence of the Police witnesses.

While ever mindful of the burden on the Prosecution and the standard of proof, I find that this interview made under caution was freely and voluntarily given.

My duty does not rest there. I am duty bound to assess whether the statement, although voluntary was created by unfairness oppression or trickery, and if so to thereby exclude the statement on that basis.

I find nothing in the evidence to even suggest oppression but learned Counsel for the accused submits that the accused was tricked into answering a question about a welding machine found at his home during a search. Documentary evidence shows that the house search revealed nothing found, yet the Police in question 116 ask him about a welding machine found at his home. It is indeed odd that the search list should reveal nothing found but this "list" was never before me as an exhibit and it was never spoken to by the officers concerned. Moreover the accused himself had told Police in earlier questions from Question 88 and Question 94 that there was a red welding machine at his home, so subsequent questions about it cannot be said to be "trickery". There is nothing in this allegation of unfairness.

The Police went out of their way to conduct the interview properly and in accordance with established procedure and I see no reason to exclude it on grounds of unfairness.

While it is obvious that not all assaults manifest themselves in physical injuries, it is remarkable in this case that the accused never once complained to anyone of assault, nor did he seek medical treatment at any time. It was some 6 to 7 weeks between his disputed interview and a formal charge and he had ample opportunity to use that time to complain should he have wished to do so. He chose not to. There is no record of complaint anywhere including in the Court below.

The accused, through his Counsel, alleges breach of two rights enshrined in s.27 of the 1997 Constitution, which was at the time of the interview still extant. He says first that the accused was never given the right to access to family and secondly that having waived his rights to a lawyer present, that he should have been reminded of his right to a lawyer every time he was reminded of the caution.

On the family question it is worth noting the caution given to the accused twice (at #7 and #111) told him that he had a right to consult his family. The "family" witness called by the Defence, laughed throughout his evidence and could not remember the date of his visit, even approximately. I placed no weight on his evidence.

The accused, on his own evidence was advised of his rights by Solicitor Kohli twice the morning he was left at Seaqaqa and furthermore he was cautioned or reminded caution five times during the course of the interview and each time he was reminded that he could have a lawyer of his choice. The record refers to #8

"Do you wish to consult any Solicitor now?

A. I have already consulted my Solicitor My Kholi who has already advised me and also dropped me at Seaqaqa police station"

In the case of Kerponay v Attorney General of Canada (1982) ISCR41, the Court said that any waiver of the right to counsel

"is dependent upon it being clear and unequivocal that a person is waiving the procedural safeguard and he is doing so with the full knowledge of the rights the procedure was enacted to protect and the effect the waiver will have on these rights"(emphasis in the original )per Lamer C.J..

It is quite clear that the accused was aware of his rights to counsel, that he understood the protection of counsel and that in the certain belief that he had been briefed adequately he waived the rights to counsel.

Neither of these constitutional allegations are sustainable and there is no merit in them; it is therefore unnecessary for me to decide whether or not to exclude the statement on the basis of breach of the suspect’s right under s.27 of the Constitution.

Counsel does submit that there was a breach of Rule IV (f) of the Judge’s Rules. Rule IV (f) relates to the reading of the statement by the suspect. The accused stated in his evidence that he never read the statement nor was he given the opportunity to do so. The Rule 4(f) makes provision for a suspect who refuses to read a statement over. This was not the case here. The record reads:

"Q. 142 Do you wish to read the interview?

A. I have read page by page and signed."

The accused did in fact sign every page of the record apart from the last page and another page where his signature is disputed; and therefore if the exact procedure under Rule IV had not been followed, then its spirit was reflected in the questions relating to reading and alteration and correction. The Rules are not a "straight jacket "for the Police. They are procedural guidelines in the taking of a statement and a breach of Rule IV, if indeed there be one in this case, has not been to the prejudice of the accused.

The interview being voluntarily made and not created out of unfairness and in full accordance with the suspect’s Constitutional rights, is therefore admissible in evidence.

Paul K Madigan
Judge

At Labasa
Wednesday 9th September 2009