State v Atik [2010] FJHC 196; HAC045.2009 (7 June 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 045 OF 2009

STATE

vs

MOHAMMED ATIK
s/o Mohammed Hanif

Mr J. Singh for the State
Accused in person

Date of Hearing: 7 June 2010
Date of Ruling: 7 June 2010

VOIR DIRE RULING

[1] The State is seeking to adduce into evidence at the substantive trial, one interview conducted under caution with the accused on the 23rd June 2009 along with a Charge Statement made on the following day; both of which contain admissions to the charge of attempted murder that the accused is facing.

[2] The accused objects to their admissibility on the grounds of assaults on arrest and during the interview. When I asked for further and better particulars of the assaults, the accused advised me that he had been assaulted with a wooden stick both at the scene of arrest and at the station and that he had been assaulted with stones at the scene. He further said that incriminatory parts of the caution interview (but not the charge statement) had been fabricated by the statement taker. Interestingly on an earlier date, the accused had never mentioned assaults at the scene of arrest.

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 his common law rights under 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. These rights include 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 Ba Police Station gave evidence for the prosecution that on the 23rd June 2009 at approximately 1430h a report of fighting was made at the Varoka Police Post. As a result a team of 4 officers proceeded to the scene of the fight. When they got there they saw this accused with a cane knife in one hand dragging a woman with the other hand. He was chopping her both on her hands and head. One of the officers tackled him to the ground where he fell face first onto very stony ground. He still tried to get the knife to continue chopping and a struggle took place on the ground until he was finally subdued and arrested. He was taken to Ba Police Station for investigation where the caution interview was conducted that evening and a formal charge statement was taken on the 24th June 2009. On the 25th June he was medically examined at Ba Mission Hospital where he was found to have a broken nose bone and bruises and abrasions.

[7] The accused gave sworn evidence. He told of the officers coming to his home in the afternoon of the 23rd June. He was with his wife talking and as his wife talks in a loud voice they must have thought that they were arguing. He saw these "men" about 4 to 5 in front of him and two behind. The men behind started throwing sticks and stones and then men in front soon followed with the same activity. He was struck on the back and on his legs with the stones and sticks. He was holding his wife with his left hand and a cane knife in his right hand. He received one stone blow to the hand which made him drop the knife (he later said that he had 5 blows to that hand). He was punched on the face and he was bleeding from the teeth. He was then taken to the Ba Police Station where he was locked in a cell "for three days" wearing only his underpants. He made a statement under caution that night when he was assaulted threatened and forced to sign. It was not read over to him. The incriminating parts of the statement were not dictated by him but were fabricated be the statement taker. When he was taken to the hospital, he told the Doctor about injuries that she did not record. The doctor was laughing with the Police and did not care about him.

Analysis

[8] I find that the evidence of the Police Officers is consistent and responsible. In contrast the evidence of the accused is so inherently implausible that it would be unsafe to rely upon it. The medical evidence is totally consistent with the evidence of the Police that he fell on stony ground and that in an attempt to subdue him there was a rather violent struggle on that stony ground. If the accused’s evidence of assaults was to be believed then he would be dead rather than appearing in this trial. The accused would have this Court believe that the answers were fabricated but then only the answers that incriminate him. Whilst I am ever mindful of the burden and standard of proof that is on the State, the evidence of the accused is such that it cannot be believed and does nothing to detract from the solidarity of the evidence of the State’s witnesses. I find that the caution statement and the charge statement have both been voluntarily and freely given, nor is there any suggestion of oppression or fairness that might influence me to use my discretion to exclude them.

[9] The interview and the answer to charge being voluntarily made and not created out of unfairness are therefore admissible in evidence.

Paul K. Madigan
Judge

At Lautoka
7 June 2010