State v Sudhakar [2010] FJHC 521; HAC068.2010 (3 November 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO.: HAC 068 OF 2010

BETWEEN:

STATE
Prosecution

AND:

STANLEY SANJAY SUDHAKAR
Accused Person

Hearing: 0211/ - 03/11/2010
Judgment: 03/11/2010

Counsel: Mr Fotofili, L. - For State
Ms. Savou - For Accused Person

RULING

[1] It is submitted that the confession which the Accused made to the police should be ruled inadmissible. The challenge to the admissibility of the confession is pursuant to section 76(2) of the Police and Criminal Evidence Act 1984. In particular, it is alleged that the confession was obtained by oppression and/or in consequence of things said or done which was likely in the circumstances existing at the time to render unreliable any confession which might be made by the accused in consequence thereof.

[2] The background may be shortly stated as follows. On 4 May, 2008 the Accused's mother was found dead in the bedroom of the flat which she shared with the accused; she had on any view of the evidence been unlawfully killed and the police investigation led to the arrest of the Accused. On 10th May he was interviewed at the Samabula police station. The interview began at 13 58; it is accepted on behalf of the accused that he was properly cautioned and advised fully of his rights. He declined legal advice at any stage.

[3] The interview continued with appropriate breaks until approximately 2030 that day. At that time the interview ceased and did not resume until 1221 on the following day, namely, after a break of approximately 16 hours.

It is alleged by the accused that following the termination of the interview at 2030 on Saturday, 10th May he was subjected to repeated acts of violence on the part of the police over a period of 2 to 3 hours. He was also allegedly sworn at and told that his denials were not being believed. He says that the effect of the conduct of the police was such that he was very frightened and felt he had no alternative other than to confess to the crime being investigated. Essentially, he says that his will was overborne by the treatment to which he was subjected and he was unable to take any more. He alleges that it was in those circumstances and against that background that he confessed to the murder of his mother.

[4] The State submits that there was no improper behaviour whatsoever on the part of the police; they say that all the proper procedures were followed and that the Accused freely and voluntary confessed to the murder. In deciding this issue I must be satisfied that the State has proved to the criminal standard that the confession was not obtained in consequence of any oppressive conduct, or, in consequence of things said and or done by the police. I shall refer later to the full test and to the steps that I am required to take in deciding this issue.

[5] The prosecution called the two police officers who were together throughout the interviews: CPL Nute and DC Clint. It was not suggested to either of them that one had ever been present without the other. It was not suggested in cross examination to either officer that he had been personally responsible for assaulting or threatening the accused: the highest that it was put was a suggestion made to Corporal Nute that he had been aware that the accused had been assaulted at some stage after the interview had been terminated at 2030 on 10th May. He said he did not become aware of that. The assertion by the Accused, when he gave evidence, that Corporal Nute had assaulted him was never put in cross examination. The assertion included an allegation that Corporal Nute had punched him in the face. Corporal Nute said that when the interview continued on the following day the Accused did not make any complaint to him that he had been assaulted nor did he complain that he was suffering from any type of injury; he says the first time that the Accused made any mention of being assaulted was after he had confessed to killing his mother.

[6] The State called DC Amani who it was alleged had assaulted the Accused at some stage following suspension of the interview on Saturday 10th May; he was tendered by the State for cross-examination. He said that he had no recollection of the 10th May. It was suggested to him that he had come to the police station that evening even though he was off duty and that he had been under the influence of alcohol. It was suggested to him that he had hit the accused with a stick; he denied that proposition completely.

[7] The State called Rishi Ram, a JP; he had been called in by the police to speak to the accused on Monday 10th May. The Accused confirmed to him that he had been notified of all his rights and had been provided with regular refreshment. He did tell the JP that he had been assaulted but the JP was unable to see any injury and no injury was pointed out to him.

[8] Immediately following the interview with the JP, the Accused was taken for a medical examination to a health centre near the police station. The examination was conducted by a doctor who was unable to be called. However, with the agreement of both Counsel, a Dr Kurabui was called to assist with the entries that had been made on the medical examination record. It was confirmed that the Accused hade made complaint of being assaulted on 10th May but there was no visible sign of any injury and none were noted. The doctor had prescribed paracetomol and indomethacin, a pain relief and muscle relaxant respectively. In view of the fact that there was no visible sign of injury, the overwhelming likelihood is that the prescriptions were based solely upon a self diagnosis by the Accused on the strength of which the Doctor took a decision to prescribe. The fact that the medical record did not refer to the tattoos clearly present on various parts of the Accused's body seems to me to have no relevance at all to the matter in issue on this voir dire; the entry N/A in the relevant box may mean nothing more than the tattoos were not relevant to any injury.

[9] The Accused gave an account of being hit, punched, hit with a piece of iron and hit with a stick. He maintained that it had been a prolonged assault during which there were gaps and then he was further assaulted. The sense of his account was that this had lasted for several hours.

That is a summary of the evidence called in relation to this issue

[10] When an issue such as this is raised the Judge is required to adopt a three stage process. Firstly, the Judge must identify what has been said and/or done by the police. Secondly, in the event that he decides that anything was said and/or done he must ask whether it was likely in the circumstances to render unreliable a confession made in consequence. Thirdly, the judge must ask whether the prosecution have proved to the criminal standard that the confession was not obtained in consequence of things said or done.

[11] Firstly, the account given by the Accused as to what was done to him is completely at odds with the independent evidence given by the JP and the evidence of the medical examination as interpreted by Dr Kurabui. While it is evident that the Accused complained to the JP and the Doctor that he had been assaulted there was no visible evidence which went any way to supporting his assertion and the medication prescribed, I am satisfied, was prescribed only upon the basis of a self-diagnosis and not in consequence of any observable condition or injury. It is inconceivable that if the Accused had been subjected to the sort of sustained violence that he maintains there would have been no visible sign of injury.

[12] Secondly, I have to make an assessment of the witnesses who have been called to give evidence on this issue including, importantly, the Accused himself. I have listened carefully to the evidence and I am quite satisfied that there is no substance to the allegations that have been made to any of the police officers involved in the interview of the Accused; equally, I am also satisfied as to that in relation to other police witnesses to whom allegations of wholly improper conduct have been made. I am satisfied that the police witnesses have given a truthful account of what did and did not occur in the police station. It therefore follows that I reject the account given by the Accused.

[13] Counsel for the Accused places reliance upon the fact that it was after the interview resumed on Sunday 11th that the Accused confessed; it is submitted that this follows the matters complained of and therefore supports the Accused's account that he only confessed because of the treatment he had received on the Saturday night. While the submission accords with the sequence of events, it is also clear from the way in which the whole interview proceeded that the police were dealing with the incident chronologically; they had reached a certain point by 2030 on the Saturday and simply resumed from where they had left off when they continued the interview on the Sunday. The confession came when the police reached that point in their questioning relating to what happened at the house. Accordingly, I am not persuaded that there is any significance in the point made.

[14] In the circumstances, bearing in mind the findings of fact that I have made, the first matter that I am required to consider, namely, what was said and/or done results in a finding that I am satisfied to the criminal standard that nothing was said or done that would have been likely to render the Accused's confession unreliable.

[15] In those circumstances, I rule that the evidence relating to the Accused's confession to the killing of his mother is admissible.

Graham Cottle
JUDGE

At Suva
3rd November 2010