State v Fraser [2010] FJHC 117; HAC118.2006 (1 April 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 118 OF 2006

STATE

V

1. JACK ANTHONY FRASER
2. IMRAN ALI
3. SAMUEL NILENSHAR SINGH

Miss I. Whippy with Miss L. Vateitei for the State
Mr. H.A. Shah for All Accused

Date of Hearing: 29, 30 and 31 March 2010
Date of Ruling: 1 April 2010

VOIR DIRE RULING

[1] The State is seeking to adduce into evidence at the substantive trial, two interviews conducted under caution with the first accused – one conducted from the 5th to 6th October 2006, and another conducted on the 7th October 2006; both of which contain admissions to the charge of murder the first accused is facing.

[2] The defence objects to their admissibility on the grounds of assaults on arrest and during the interviews and in particular oppression occasioned by the first accused being held continuously in custody from early on the 3rd October until the 7th October 2006. When I asked for further and better particulars of the assaults, counsel for the accused advised me that his instructions were that he had been assaulted with fists and kicks and with a telephone directory. There were threats of further physical harm and even threats of death.

The Legal Tests

[3] 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) A.C. 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 [1979] UKHL 3; (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."

[4] 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.

[5] The burden of proving voluntariness, fairness, lack of oppression, compliance with the Constitution, where applicable, 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

[6] Police Officers from Nadi Police Station gave evidence for the prosecution that on the 3rd October 2006 at approximately 5.30am they went to Banaras, Lautoka to look for the first accused. The team was led by an Inspector Timoci (who is now deceased). When they got to his sister’s house where he was thought to be, they surrounded the house then saw a man jump over the back fence.

He was pursued and found hiding among banana trees. He was identified by Inspector Timoci as Jack Fraser the first accused. He was taken back to his sister’s house (there was some inconsistencies as to whether he jumped back over the fence, or was led back) but all said that he was co-operative and willingly accompanied the officers. He was then taken in a vehicle back to Nadi Station where he commenced an interview under caution on the evening of that day (3rd October). This interview is not sought to be adduced in evidence.

[7] On the 5th October the first accused was released from custody for 36 minutes and then re-arrested and detained.

[8] The first accused made a second interview under caution on the 5th and concluding on the 6th October 2006. In this interview he made detailed confessions to murder. His wife was present throughout that interview.

[9] On the 7th October, in the light of information received, he was again interviewed, where he renewed aspects of his confession. He was also taken for a reconstruction of events at the Natabua seaside that day.

[10] On the 8th October the first accused was taken to hospital for medical examination on the order of the Magistrate. He was found professionally to have bruises on his left calf and bruises on the chest. Tenderness and swelling on his head and tenderness felt during palpitation.

[11] The first accused gave sworn evidence. He told of the officers coming to his home, in fact his sister’s home, how they pulled him out of the door – he was punched by Inspector Timoci whom he called in evidence "Jim". He fell on the porch and scratched his leg. He was grabbed and handcuffed behind his back. He was grabbed by the neck and in choking fashion and asked "how does it feel to die?". He was verbally harassed while in the cell and "roughed up" again during the interview. "Jim" came in and whacked him over the head with a telephone directory. During the second interview his wife was present and he was again whacked over the head by Jim in her presence. He was constantly threatened throughout the interview. At the reconstruction at Natabua seaside he was beaten, punched and assaulted with a "vaivai". He didn’t answer any question voluntarily but was forced to by the assaults.

[12] His de facto wife gave evidence for his defence. She said that while she was present at the interview, she saw "Jim" come in and whack Jack over the head. She was crying and told Jack just to tell them whatever they wanted to hear. I place very little weight on her evidence. As the first accused is the only person to refer to the Inspector as "Jim", the fact that she also called him "Jim" suggests to me that her evidence was rehearsed.

Analysis

[13] I find that the Police witnesses who gave evidence touching on the making of the two interviews were consistent, confident and experienced and I believe their evidence that nothing improper occurred during the taking of the two statements. I further find that the first accused’s evidence relating to his assaults and mistreatment to be exaggerated and totally inconsistent with the injuries recorded in the medical report. An independent witness called by the Prosecution was a Justice of the Peace and C.E.O. of Nadi Town Council (Mr. Robin Ali), who interviewed the first accused and was told by him that he had been well treated and he had no complaints.

[14] The main interview of 5th and 6th October is self evidently voluntarily given. At his request his de facto wife is present; he is remorseful and says that he wanted to tell everything in front of his wife so that she would know of his true role in this venture. It is clearly and utterly voluntarily given.

[15] This willingness spills over to the next interview of the 7th October in which he gives details at the Natabua seafront of the disposal of evidence etc.

[16] While ever mindful of the burden on the Prosecution and the standard of proof, I find that these two interviews made under caution were freely and voluntarily given.

[17] However my duty does not rest there. I am duty bound to assess whether the statements although voluntary were created by what the Defence says is oppression and if I find that is so, then to thereby exclude the two statements on that basis.

[18] Learned Counsel for the accused submits that by keeping the accused in custody between the 3rd and 7th October 2006 amounts to oppression which has sapped his mind and will. The act of releasing him after 48 hours for 30 minutes before re-arresting him they say is but a ruse to overcome the charging time limits.

[19] I do not agree that such detention has been oppressive, nor does the first accused make any reference to it in his evidence. It was clear from cross examination and his evidence-in-chief that he was far more obsessed with perceived assaults rather than his long detention. In theory the temporary release did satisfy the 48 hour rule as frankly admitted by the investigation officer and most of the remainder of the time was spent in conducting the two subject caution interviews.

[20] The mind and will of the accused has certainly not be "sapped" given his great desire to get things off his chest in the presence of his de facto wife.

[21] The two interviews being voluntarily made and not created out of oppression are therefore admissible in evidence.

The Third Accused

[22] The State originally sought to have adduced into evidence the transcript of an audio-taped interview between the Police and the third accused conducted on the 15th January 2007 at Nadi Police Station.

[23] I immediately expressed the Court’s grave concerns about this proposal as the original tape was irretrievably and inexplicably lost along with two copies made of the tape in January 2007. Mr. Shah’s submissions that he was unable to test the accuracy of the transcript found favour with this Court. In addition to that, the purported transcript was undated, unsigned and uncertified by whoever had reduced the interview to writing and as such it exists in vacuo without any supporting foundation whatsoever. The Court is of the view that to rely on this transcript would be totally unfair to the third accused and it would be unsafe to rely upon it.

[24] In the alternative the State seeks to have adduced the oral submissions made by the third accused in the course of that interview, those admissions having being detailed in the evidence of Detective Constable 1906, Vikash Prasad, the interviewing officer and Sergeant 1475, Sumeshwar Prasad, the witnessing officer before me. The Court was persuaded of the propriety of this course by the State in reliance on the authority of State v Raymond Singh, HAC 72 of 2008 in which Goundar J. ruled that oral confessions to persons in authority are quite permissible if it is proved by the prosecution that they were voluntary and obtained without unfairness or oppression.

The Facts

[25] The third accused was arrested at his sister’s home in Waiyavi Stage 5, Lautoka at about 6.30am. He was handcuffed and taken to Lautoka Police Station. Officers came from Nadi to collect him and they put him into a cell at Nadi at 11.51am. All prosecution witnesses said that they saw scratches on his face that morning, some even saying there were bruises on his face.

[26] Between 1300 hours and 1500 hours he was interviewed under caution on an audiotape, referred to in paragraph 2 above.

[27] The third accused gave sworn evidence. He told the Court in great detail about his treatment on the morning of the 15th January. I find that the evidence he gave was grossly exaggerated and that if he was assaulted in the way and for the length of time that he attests to, his injuries would have been far more serious that what they seem to have been.

[28] Two police officers tell me that he was taken to hospital on the evening of the 15th January 2007 (the accused says not) and the Magistrates Court Record shows that the Magistrate ordered a medical examination of the third accused on the 16th January 2007. The medical report relating to the 16th examination is missing and lost and I have never been shown a report for the examination on the 15th if indeed there ever was such an examination.

[29] I am left with serious misgivings about the treatment of the third accused. There seems to be a consensus that he had at least scratches if not bruises on his face the morning before he made his oral admissions. There is no medical report from either the 15th January or the 16th January to explain and substantiate these facial injuries and any others there might have been. Nor is there any evidence to explain the provenance of the scratches and bruises.

[30] I do not believe the accused’s evidence of his assaults, but then again the prosecution has not proved beyond reasonable doubt that those assaults did not lead the accused to make the verbal admissions that he did. I have not heard enough evidence to make me sure of that.

[31] The benefit of the Court’s doubt must of course go to the accused and I therefore find that the oral admissions made by the accused between 1300 hours and 1500 hours on the 15th January 2007 were not voluntary and they cannot be led in evidence in the trial proper.

Paul K. Madigan
Judge

At Lautoka
1 April 2010