State v Sharma [2011] FJHC 699; HAC08.2008 (12 October 2011)

IN THE HIGH COURT OF FIJI AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No: HAC 08 of 2008

BETWEEN:

THE STATE

AND:

RAJESH DEO SHARMA

BEFORE: Priyantha Nawana J.

COUNSEL
Prosecution: Mr S Babitu with Ms P Low, State Counsel
Accused-Person: Mr T Terere of Legal Aid Commission

INQUIRY
Dates of Inquiry: 03-07 October 2011
Written-Submissions: 11 October 2011

Date of Ruling: 12 October 2011

RULING ON VOIRE DIRE

1. The accused abovenamed stands indicted with the commission of the murder of one Alumita Laidrodro, an offence punishable under Section 199 read with Section 200 of the Penal Code. The offence is alleged to have been committed on 24 January 2008.
   
2. The prosecution, in support of its case, relied on the contents of the statement made by the accused-person under caution in the course of an interview by police. The statement, which was confessional in nature, was objected to by the accused-person on the premise that it was obtained after being influenced by means of assault by police. As such, it was contended on behalf of the accused-person, that the confession was involuntary; hence, irrelevant.
   
3. A confession is a statement admitting or acknowledging all facts necessary for conviction on an offence, which would be distinct from a mere admission of certain facts, which if true, would still not by themselves satisfy all elements of the offence to secure a conviction. It could be either wholly or partly adverse to the person who makes it - whether made to a person in authority or not. The law permits a confession to be led in evidence if it is relevant to the matter before court; and, if it is not excluded at court's discretion under the criteria laid down by law.
   
4. Court can, accordingly, exclude the admission of a confession in evidence if it appears that the confession was or might have been obtained by oppression of the person who made it; or in consequence of anything said or done which was likely, in the circumstances existing at the time, to render the confession involuntary and unreliable. A confession could also be ruled to be irrelevant if it appears to court that, having regard to all the circumstances, including the circumstances in which the confession was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings. Moreover, a confession could be excluded if the court holds that such exclusion is necessary in order to secure a fair trial for the accused.
   
5. The Privy Council, in the case of Wong Kam-Ming v The Queen (1980) A. C. 247, P. C., observed that:
   

[t]he basic control over admissibility of statements are found in the evidential rule that an admission must be voluntary i.e. not obtained through violence, fear or prejudice, oppression, threats and promises or other improper inducements. See decision of Lord Sumner in Ibrahim v R [1914] UKPC 16; (1914-15) AER 874 at 877. It is to the evidence that the court must turn for an answer to the voluntariness of the confessions.

7. In the often-cited case of Shiu Charan v R (FCA Crim. App. 46/1983), it was held that:

[F]irst, it must be established affirmatively by the crown beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as use of force, threats or prejudice or inducement by offer of some advantage-what has been picturesquely described as 'the flattery of hope or the tyranny of fear'. Ibrahim v R (1914) A.C. 599; DPP v Pin 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 the police behaved, ... falling short of overbearing the will, by trickery or by unfair treatment Regina v Sang [1979] UKHL 3; (1980) AC 402.

8. In this case, the challenge by the accused-person rendered the alleged confession to police questionable in regard to its admissibility in evidence. And, it became, therefore, imperative for court to decide on its relevance at a trial within trial or at a voir dire. (R. v. Davis [1990] Crim. L R 860 C A; R. v. Dhorajiwala [2010] 2 Cr. App. R. R. 21, CA).
   
9. At the voir dire before me, the prosecution called eleven police officers and a civilian Justice of the Peace (JP) in support of its position that the confession of the accused person was, in fact, voluntary. The accused, on the other hand, assailing the confession on the basis of its involuntariness, adduced his own evidence; called a medical doctor and his mother, Angila Devi, to support his case.
   
10. Evidence revealed that the accused was in a relationship with the deceased-Alumita Laidrodro. Alumita went missing in January 2008. Some severed parts of human limbs and a female torso were found in Rakiraki area where the accused-person and Alumita frequented. Police investigations, thereupon, ensued and the accused-person was suspected to have been involved in the crime.
    
11. Police, having teamed-up with several officers from police stations in the locality under the directions of Divisional Crime Officer (DCO) of the Western Division, Mr Vijay Singh, launched its search towards Matokana Village off Sigatoka in Navosa Province upon receipt of some information concerning the accused-person on or about 08 February 2008.
    
12. According to the evidence of the prosecution, the accused-person was arrested by police around 1.00 p.m. on 11 February 2008 on suspicion in Matokana, a remote village, where the access was possible only on foot. After the arrest, the accused-person was brought to the place of Turaga ni Koro (the village headman) of Matokana. The police team had their lunch in Matokana before they set-forth to Keiyasi Police Station through the village of Waibosaga. At Waibasoga, the police team, along with the accused-person, had tea. The accused-person was then accompanied to Keiyasi Police Station around 11.20 p.m. after some hours of walk, where he was detained in the police cell overnight.
    
13. On 12 February 2008, the accused-person was taken to Lautoka Police Station, where the DCO, too, was present, before proceeding to Rakiraki after having the breakfast. The statement under caution, which happened to contain the confession of the accused-person, was recorded at the Crime Office of Rakiraki Police Station on that day from 1615 hrs.-2220 hrs.; and on 13 February 2008 from 0730 hrs.-1646 hrs. The charge statement, too, was recorded thereafter followed by a medical examination by Dr Charlie Rasue of the Rakiraki Hospital. The caution interview was conducted by Detective Corporal Arvind while Cpl. Mahesh and Sanjeet Maharaj, JP, witnessed the interview. The charge statement was recorded by Detective Cpl. Parmesh Ram while it was witnessed by Detective Sgt. Keshwan Naidu and Sanjeet Maharaj, JP. All five gave evidence at the inquiry supporting one another and denied exerting any influence in recording the statement.
    
14. The prosecution relied on the 'Caution-Interview Statement' and its English translation marked 'PE-1' and 'PE-2' and the 'Charge Statement' and its English Translation marked 'PE-3A' and 'PE-3B' to be admitted in evidence at the trial stating that they contained voluntary statements by the accused-person that are relevant to the matter before court.
    
15. The accused-person, in the course of the testimonies of police officers, continuously took up the position that he was assaulted from the point of arrest up until his statement was recorded. In addition to the acts of assault, the accused-person maintained the position that he was subjected to inhuman treatment such as forced drowning at the hands of police officers along the long journey to Keiyasi Police Station. He also complained that he was beaten-up while the statement under caution was recorded by the interviewing officer.
    
16. In his testimony, the accused person admitted that he was arrested on 11 February 2008 in Matokana and was detained in custody at Keiyasi Police Station before he was taken to Rakiraki with a stop-over in Lautoka. He complained that he was severely punched on the ear and on the head leading to bleeding injuries, which also resulted in loss of consciousness on the way. He stated that he complained of the police assaults to the DCO on his arrival at the Lautoka Police Station on 12 February 2008. He also admitted that the interview in question was held at Rakiraki Police Station and that Mr Sanjeet Maharaj, JP, was related to him. The accused-person, however, denied that Mr Maharaj was invited by him to oversee the interview by police and contended that Mr Maharaj was sent out when the police embarked on assault.
    
17. The accused-person tendered a photograph marked 'DE-1', which depicted him holding the carcass of a dead bat along with three police officers near a creek on their way to Keiyasi Police Station. He also tendered a copy of a statement marked 'DE-2' dated 29 February 2008 made to police alleging police assault. Medical Report, after the examination by Dr Charlie Rasue on 13 February 2008, marked 'PE-3', too, was tendered by the accused in support of his case.
    
18. I have carefully considered the evidence of the police officers on behalf of the prosecution and that of the accused, their demeanour and deportment and the contents of the documents tendered by the accused-person.
    
19. There is no dispute that the accused-person was arrested in Matukana on 11 February 2008 around 1.00 p.m. The journey on foot to Kaiyasi, the detention and stop-over respectively at police stations at Kaiyasi and Lautoka are also not disputed. Instead, it was contended on behalf of the accused-person that at each occasion he (the accused-person) was assaulted and beaten up with the view of extracting a confession.
    
20. The Medical Report submitted by Dr Rasue on examination of the accused-person at or soon after the arrest on 13 February 2008 does not show any injuries that correspond to the extent of brutalities that the accused-person complained of and suggested to the prosecution witnesses. It is also clear that even witness-Angila Devi's assertions that the accused person was bleeding all over the body and his clothes were blood-soaked, when she saw him on 13 February 2008, just before the medical examination, contradicts the medical findings of the doctor.
    
21. The findings, as recorded by the doctor in Cage D (12) of the Medical Examination Form, only showed some injuries, which were superficial in nature and they did not correspond to the level of assaults that was said to have been inflicted on the accused-person by police. It, therefore, appears that the accused-person and his witness-Angila Devi, who was the mother of the accused, exaggerated what could clearly be seen by a doctor at a clinical examination in order to serve their perceived purposes.
    
22. As regards the event where the accused was photographed holding the carcass of a dead bat on 12 February 2008, it is needless to say that such conduct of the police was totally unwarranted and amounts to an impermissible and deplorable police excess while carrying-out investigations into a crime with the suspect under their charge.
    
23. In light of the above findings, I apply the test as set out in the foregoing authorities in deciding the admissibility of the contents of the caution-interview statement.
    
24. There is no evidence in this case upon which I can come to the finding that the admissions in the cautioned-interview statement were obtained through violence, oppression, threats, promises or such other improper inducements. I am, in the circumstances, inclined to take the view that the statement was not procured by assault and/or by threat of such assault or by means of oppression. In coming to this conclusion, I am convinced by the evidence of Mr Sanjeet Maharaj, JP, who was present throughout the caution interview at the request of the accused, that he (the accused-person) was neither oppressed nor influenced by means of assault or such threats.
    
25. The accused-person, therefore, did not appear to have been influenced to make the statement involuntarily. I reach the same conclusion as regards the charge statement for the same reasons. On the contrary, evidence presented before court leads me to the conclusion beyond reasonable doubt that admissions made in the statements were, in fact, voluntary. I do not see that admission of the statement would have an adverse effect on the fairness of the proceedings or that it would fail to secure a fair trial for the accused-person either.
    
26. I, accordingly, allow the admission of the two statements under caution as relevant and admissible in evidence, if the prosecution relies on them at the trial.
    

PRIYANTHA NAWANA
JUDGE

HIGH COURT
LAUTOKA
12 October 2011