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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 04 OF 2009 [FICAC]
BETWEEN :
FIJI INDEPENDENT COMMISSION AGAINST
CORRUPTION (FICAC)
AND:
MOHAMMED RIZWAN
Counsels : Mr. V. Perera and Ms H. Matakitoga for FICAC
Mr. Iqbal Khan and Ms Vokanavanua for the Accused
Date of Ruling : 24th September 2012
VOIR DIRE RULING
The 2nd, 3rd and 4th charges speaks of Forgery and the 5th count speaks of a charge of uttering forged documents to FIRCA in the name of Forzana Zurin Nisha.
Preamble to the Judge's Rule states as follows:
"That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression."
"First, 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 the use of force, threats of prejudice or inducement by offer of some advantage in what has been picturesquely described as the flattery of hope or the tyranny of fear. Ibrahim v R (1914 AC 599. DPP v Ping Lin (1976) AC 574. Secondly even if such voluntariness is established there is also a need to consider whether the more general unfairness exists in the way in which the police behaved, perhaps by reach of the judges rules failing short of overbearing will, by trickery or by unfair treatment. Regina v Sang (1980) AC 4023, 436@ C-E."
"I cannot myself help regarding the issue as basically one of fact. The trial judge should approach his task by applying the test enunciated by Lord Summer in a common sense way to all the facts in the case in their context such as a jury would approach it if the task had fallen to them. In the light of all the facts in their context, he should ask himself this question, and no other. "Have the prosecution proved that the contested statements was voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage excited or held out by a person if authority or by oppression."
"The Judges' Rules 1964 are not rules of law and their non-observance will not necessarily lead to a confession being excluded from evidence, unless it is shown that the confession was not made voluntarily. Accordingly where it is alleged that a confession has been obtained in the course of questioning which was not introduced by a caution in accordance with r.2b of the 1964 rules it is open to the trial judge to admit the confession on the basis that it was made voluntarily without ruling on the question whether it was obtained in breach of the rules (see p. 1118 e and j to p.1119 a and p. 1120 b, ost).
In order to establish that a confession is not voluntary in that it was obtained by 'oppression', it must be shown that it was obtained in circumstances which tended to sap, and did sap, the free will of the suspect. 'Oppressive questioning' may be described as questionings which by its nature, duration or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the suspect that his will crumbles and he speaks when otherwise he would have remained silent (see p 1119 c to f, post)".
"A breach of Judges Rules does not necessarily mean that an admission would be rejected. It is within the discretion of the Court to so reject if it considers that the manner in which the admission was obtained was "improper" and "unfair". There have been many judicial pronouncements on what is improper or unfair. These expressions have to be considered by looking at the facts of the case bearing in mind when does a person fell himself in custody, what is voluntary, what are the influences that excite his fears and hopes by reference to the station in life of the accused."
Evidence
12 The Prosecution called 8 witnesses. The 1st witness was Ms Loraini Seru. She said that she was the investigating officer (IO) in the case. On the 4/8/2009 at about 11.00pm she and her team went to the residence of the Accused with a Search Warrant. The Accused was not there and she was told by the wife of the Accused that he had gone for a grog session and he will come home late as much 2 – 3 am. She commenced the search and recovered some documents. They were in search of a computer central processing unit (CPU) or a hard drive. She was informed by the team member one Ifraz brother of the Accused was trying to dispose some of the computer accessories into the cassava patch. She directed the arrest of the brother of the Accused and continued with the search. Ifraz was kept under the custody of Kuliniasi in the mini bus.
In the meantime she had called for assistance from her other team which was lead by Isireli Tagicaki. He came there with Malakai Seru and Simione Cagilaba.
The Accused returned home after 2.00am on 5/8/2009. She had explained to the Accused of the purpose of her visit. The Accused had directed them to one Irshad's home and saying that he had kept the CPU/Hard drive there. She had arrested the Accused after explaining his rights to him. The Accused had told that his lawyer is asleep and it's alright. She claims at the time of the arrest the Accused was normal and co-operative.
The teams left to Irshad's place at Ba. From there they had gone to Forzana Zurin Nisha. Finally they had returned to FICAC office at Lautoka. The Accused was brought in the twin cab. She says the Accused was not handcuffed and they were not issued with handcuffs at that period.
They had returned to FICAC office at around 6.00am on 5th August 2009. She had handed over the Accused and his brother to Kuliniasi and gone back to Ba for further investigation.
She had continued with investigation in the case and at around 2.00pm she had inquired the Accused about his health conditions. She had found the Accused had some visitors. In the afternoon she had released the brother of the Accused.
She claims that the Accused or his family members did not raise any complaints to her. She had commenced the caution interview at about 6.00pm. Abdul Rahim was the witnessing officer. The interview was in a form of question and answer and the same was reduced to writing.
The interview had commenced at 6.30pm. From 6.55 – 7.00pm Rizwan was allowed to speak to his wife. At 7.05pm it was suspend again for him to have his dinner. He was served with fish and chips. Interview resumed at 7.27pm and at 8.25pm the interview was suspended for the Accused to smoke, recommenced at 8.35pm and adjourned for the day at 8.55pm. The Accused was taken to Lautoka Police Station and kept there.
On the 2nd day, the Accused was brought from Lautoka Police Station and the interview commenced at 10.50am and suspended at 12.09 noon for a break. It resumed again (the time is not noted) and suspended at 1.10pm for the Accused to smoke a cigarette. It recommenced again at 1.22pm and adjourned at 2.19pm for the Accused to have his lunch. After lunch the interview resumed at 2.54pm and suspended again at 4.45pm for a short break. Resumed at 5.50pm and suspended at 6.55pm for a short break. At 8.17pm the Accused was allowed to have his dinner and resumed at 9.15pm. At 9.20pm the interview was suspended for the day. Once again he was detained at the Police Station of Lautoka.
On the 3rd day 7/8/2009 the Accused was brought from Lautoka Police Station and the interview commenced at 10.50am and suspended at 12.16pm to allow the Accused to smoke a cigarette. Interview resumed and at 12.25 noon. At 1.05pm the interview suspended for the Accused to have his lunch and recommenced at 2.09pm. At 2.45pm the interview was suspended for the Accused to go through his statement and at 2.58 pm it resumed again and concluded at 3.00pm. After charging, the Accused was produced to the Magistrate Court of Ba.
She submits that the Accused was given all his rights including right to contact a Counsel and right to remain silent. The Accused had opted to call Mr. Haroon Ali Shah, at that time. This witness had told him that the said Counsel is also under investigation hence to contact another Counsel. Then the Accused had told her that he will contact another Counsel later.
This witness says that the Accused was given sufficient rest and he was not subject to any ill treatment. Further she had not seen any injuries on him. Further she says at the end of the interview he was given an opportunity to go through the interview record and he was allowed to alter or delete any part of the record.
This witness also said that when the Accused was produced before the Magistrate at the Ba Magistrate Court the Accused had not raised any complaints to the Magistrate and he was bailed out on the same day.
When the defence questioned and suggested her that she went to the house of the Accused on 7/7/09 she firmly denied.
She said that the Accused was not mishandled or ill treated at any time. This witness said she never assaulted the Accused at any time.
The Accused said in Court that on 5/8/09 at about 2.15am he came home in his car, when he parked the car he was dragged out by the
FICAC officials and questioned about CPU and Forzana. When he said he does not know, the FICAC officials had punched him on his stomach.
When his brother came and punched one of the FICAC officers then he was arrested and taken to the trunk of the mini van.
The Accused said he was arrested by Loraini Seru and she did not give the right to Counsel. He said that after the arrest he was taken
to the car and a water tank taken out from the trunk of the car and he was 'banged' with that water tank. When this kept on going
the mother-in-law of the Accused had yelled at them, then he was taken to the twin cab.
From there he was taken to Forzana's house at Yalalevu. There he was kept in the twin cab and the officers had gone into the house and returned to the vehicle.
From there he was taken to FICAC office at Lautoka. On the way he was handcuffed behind and the officers who accompanied him had punched him continuously and asked about the CPU.
The Accused says that on the way back the vehicle was stopped at Vitogo Police Post and his handcuffs were removed and returned to them. At that time a Fijian man had come to the cab and told him that "better to tell everything or else he will be taken to the Military Camp".
He says, he was brought to FICAC office at around 6.00am and taken to a room which had plenty of chairs and he was seated there until afternoon. Simione was in the room and other officers came in and enquired about the CPU and assaulted him.
He says Loraini Seru came at about 11.30 and threatened him. He further said he was not given the breakfast. He submits that he was given lunch at about 2.50pm. He told Court that he was brought at 6.00am and until 6.30pm he was interrogated and assaulted by the FICAC officials.
At the caution interview he says he was not given the right to have counsel.
The Accused submitted to Court that he did not make the statement voluntarily he was assaulted by the officials and told him to say whatever they wanted in the statement.
One of the officers Abdul Raheem had told him that he will rape his wife and make her to lose her job.
After the statement he was charged and taken to Magistrates Court Ba there he was represented by a Counsel Mr. Sahu Khan and the Counsel had raised complaint to the Magistrate.
The Accused was subjected to cross examination then he said on the 7th August 2009 he was represented by Mr Navit Sahu Khan. According to the Magistrate Court records there is no complaint raised with the Magistrate. Further the Accused was enlarged on bail on the same day. The Accused admitted that he was not referred to any Medical Practitioner.
The Accused said that he complained to many FICAC officers about the assault but he cannot recall any of the names or identities.
He also admitted that threat of raping his wife by Abdul Raheem was not raised with Abdul Raheem when he gave evidence.
The Accused said he was handcuffed from Clapcott to Vitogo Police Post but he admitted that in the grounds of objections he had stated that he was handcuffed from Ba to FICAC office at Lautoka.
The Accused submits the entire statement was made on the instruction and force made by the FICAC officials but when he was cross examined he admitted many answers given by him were on his own.
Considering all the evidence before the Court that the Interviewing Officer had asked the Accused whether he wished to have a Counsel the Accused opted to have Mr. Haroon Ali Shah. The Investigating Officer had told him that there is an investigation going on against the said lawyer hence he can have another Counsel there after the Accused had told her that he will have a Counsel later.
Perusing the case record of the Magistrate Court and this Court, from 7/8/2009 up to date the Accused was represented by several counsels but he was never represented by Mr. Haroon Ali Shah. If the Accused was so interested he could have had the Counsel in the Magistrate Court or High Court, which is not done. Further this issue was not taken up at the Magistrate Court or any other forum.
If the Investigating Officer acted in an arbitrary manner as claimed by the Accused she wouldn't have recorded the request of the Accused, she could have recorded that the Accused does not want a Counsel or something else. Considering the statement and the evidence before the Court I find the Accused was given the right to have a Counsel.
The Accused says that on the 5th August 2009 he was not allowed to rest and he was subject to assault from 2.30am to 6.30pm by several FICAC officials.
The FICAC officials who gave evidence say that he was allowed to sleep. Further it is submitted that he was served with his meals and he had visitors.
Considering the fact that he was assaulted from 2.30am to 6.30pm on 5th August 2009 the Court has no evidence other than the evidence of the Accused. FICAC officers who gave evidence were former Police Officers most of them were fairly big built personnel. The Accused is an average built person, if he was assaulted the way he claimed he would have been hospitalized at the end of the day. But there is not even a scratch on him when he appeared before the Magistrate. If he was assaulted the way he says he would have taken medical treatment which did not happen. Further the Accused did not submit to Court that he was injured anyway.
Considering all factors I find that there is no evidence of assault on the Accused at the time of recording the statement.
Considering the statement in total I find the Accused had ample time to understand the charge and the consequences, hence I find there is no oppression on the Accused.
S. Thurairaja
Judge
At Lautoka
24th September 2012
Solicitors: Fiji Independent Against Corruption Lawyer for FICAC
Messrs Iqbal Khan & Associates for the Accused
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URL: http://www.paclii.org/fj/cases/FJHC/2012/1339.html