State v Chand - Ruling on Voire Dire [2012] FJHC 967; HAC032.2005 (5 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No: HAC 032 of 2005

BETWEEN:

STATE

AND:

ASHWIN CHAND

Ms. L. Vateitei for the State
Accused Inperson

Date of Hearing : 2nd March, 2012.
Date of Ruling : 5th March, 2012.

VOIR DIRE RULING

1. The accused abovenamed is charged by the Director Public Prosecution for
Murder of Premila Wati d/o Ram Naresh. Punishable under Section 199 and 200 of the Penal Code (Cap.17).

2. The accused challenged the admissibility of the caution interview statement made to the Police.

3. A voir dire inquiry held to determine the admissibility of the statement.

4. The law relating to the admissibility of confessional statement to the police was originated from Section 27 of the Constitution (which at the time was operative).

Section 27 states as follows:

"1. Every person who is arrested or detained has the right:

(a) to be informed promptly in a language that he or she understands of the reason for his or her arrest or detention and of the nature of any charge that may be brought;

(b) to be promptly released if not charged;

(c ) to consult with a legal practitioner of his or her choice in private in the place where he or she is detained, to be informed of that right promptly and, if he or she does not have sufficient means to engage a legal practitioner and the interests of justice require legal representation to be available, to be given the services of a legal practitioner under a scheme for legal aid;

(d) to be given the opportunity to communicate with, and to be visited by:

(i) his or her spouse, partner or next-of-kin; and

(ii) a religious counselor or social worker;

(e) to challenge the lawfulness of his or her detention before a court of law

and to be released if the detention is unlawful; and

(f) to be treated with humanity and with respect for his or her inherent dignity.

2. The authorities holding a person who has been arrested or detained must promptly take all reasonable steps to inform his or her spouse, partner or next-of-kin of his or her arrest or detention.

3. Every person who is arrested for a suspected offence has the right:

(a) to be informed promptly in a language that he or she understands that he or she has the right to refrain from making a statement;

(b) to be brought before a court no later than 48 hours after the time of arrest or, if that is not reasonably possible, as soon as possible thereafter; and

(c) to be released from detention on reasonable terms and conditions pending trial, unless the interests of justice otherwise.

4. A person who is ordered to be detained pending tria is, so far as practicable, to be kept apart from conviction persons.

5. A detained child is, so far as practicable, to be kept apart from adults, unless that is not in the child's best interests".

5. The preamble to the Judges' Rules 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 is shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercise or held out by a person in authority, or by oppression".

6. In Ganga Ram and Shiu Charan v R (1983), the Fiji Court of Appeal outlined the two grounds for the exclusion of confessions:

"It wil be remembered that there are two matters each of which requires consideration in this area. 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 – which has been picturesquely described as "the flattery of hope or the tyranny of fear" Ibrahim v R (1914) AC599; DPP v Pin Lin (1976) AC 574.

7. The accused when asked by the Court what are his grounds of objections on the 9th September 2011 he submitted following grounds:

Assaulted – before they took interview. They punched me in stomach and injuries. Poked needles in finger nails. Chest and mouth with fists. By the Sushil Deo also witnessing officer – he too assaulted me with fists. That is all the allegations. They forced me to admit. By assaults went to hospital – Nadi Hospital. Doctor wrote a report – I never seen. 2 medical. After charge to hospital told me to not tell about assault.

17 October 2005 – I told Magistrate that I assaulted and couldn't stand in witness box. Magistrate saw the injures. He sent me back to hospital Dr. 16th told to remain. Couldn't stand in box cause of injuries. (sic)

8. The burden of proving voluntariness, fairness, lack of oppression, compliance with the Constitution (if there is non-compliance) and lack of prejudice to the suspect, rests at all times with the prosecution. They must prove these matters beyond reasonable doubt.

9. Prosecution called 10 witnesses. A Justice of Peace, a Medical Practitioner and eight Police Officers.----

10. Mr Prem Singh was a Justice of Peace and Commissioner of Oaths. On the 17th October 2005 he was called by the Police to examine this accused. He had visited the Police Station at Nadi and seen the accused. He had spoken to the accused and the accused was in good health. He had complained to this witness that he was assaulted by the Police. This witness had brought this complaint to the attention of Divisional Crime Officer Mr. Vijay Singh. This witness had not seen any injuries on the accused. Further, when asked the accused had told him that he was provided with meals and bathroom facilities. This witness also said that the accused told him that he was examined by a doctor.

11. The second witness called by the Prosecution was the arresting officer Daniel Naidu. He submitted to court that he and a team of Police Officers arrested the accused on the 15/10/2005 at 5.00am while he was sleeping. From there he was conveyed to Namaka Police Station, there he was handed over to Investigating Officer. He stated to the Court that the accused was not assaulted, or threatened by him or any others. The accused had co-operated with the arresting Police Officers and made no complaints. This officer clearly said that the accused was explained of his rights verbally.

12. The 3rd witness called by the Prosecution was Wilisoni Maleni. He was attached to the Dog's Unit. He and his dog also had taken part in the arrest of the accused in the very early hours on the 15th October 2005. He had not seen anyone assaulting or threatening or promising the accused to admit the incident. When the accused was arrested, he had not resisted the arrest further the accused had co-operated the Police during the arrest.

13. Prosecution called PC Venkatesh Permal as 4th witness. He was on Guard duty at the Police Station. He had released the accused, escorted him to the interviewing room (Bure) and handed him over to D/S Davendra Vijay. When the accused was in custody he had given him chicken curry and rice for lunch. He further stated to Court that he had not assaulted, forced or threatened the accused at anytime. The accused had not made any complaints to this witness.

14. Ramesh Deo was called as 5th witness by the Prosecution. He is presently retired from the service. At the relevant time he was an acting Corporal and Commander of Unit 3. He confirms the accused was in the Police Cell and he had been provided with meals by this witness, and this was recorded at the records maintained at the Station. He informs court that he or his officials did not assault, threaten the accused at anytime. The accused did not make any complaint to this witness.

15. Meli Doughty was called as 6th witness by the Prosecution. He was not involved in this investigation. He was serving at the Police Station on the 17/10/2005. While he was attending to another matter this accused had come from Court, and sat on the same bench beside this witness. Then he had noticed that the accused was pricking his finger nails with a paper clip from the bundle of documents which he brought from the Magistrate Court. This witness had immediately called the escorting officer Nilesh and removed the paper clips. This witness had told this incident to D.S Sushil Deo also.

16. Wasu Divan Nair was called as seventh witness. He was the witnessing officer at the charging session. He submitted that the accused was charged in Hindustani Language at his request. Subsequently that Statement was translated into English. Both statements were produced in court as VD1 and VD1(a) respectively. This witness told Court that the accused was not assaulted or threatened by him or any other person. The charging session was conducted by D/S Karam Chand. The accused had not made any complaints to this witness.

17. Semi Meru was the 8th witness called by the State. He had escorted the accused to hospital on 16/10/2005. He informs Court that the accused did not have any visible injuries on him. After the medical examination he had brought the accused back to the Police Station. He submitted that he did not threat or assault the accused. The relevant medical examination report is marked as VD2.

18. Dr. Tuidraki was called as 9th witness. He had examined the accused. When he questioned the accused he had told him that Indian Police Officers had stepped on his fingers on the 15/10/2005. The Doctor had recorded the same in the medical report. At the medical examination he had observed two injuries on the accused. One was a small laceration under left upper lip the other one was Haemotoma under the nail of middle finger, index finger and thumb. After examining the accused thoroughly the Doctor is of the view that the 1st injury could have been caused by a punch. The other injury is caused by hard blunt object. When the State Counsel questioned this witness the injury could not have been caused by stepping on the fingers by boots because there is no other related injuries, pain on the accused therefore it is possible by pricking with the paper clip.

19. D/C Davendra Vijay was the 10th witness called by the Prosecution. He said he was the witnessing officer at the interviewing session. The accused was interviewed by D/C Sushil on the 15/10/2005. The interview had been conducted in Hindustani language on the request of the accused. Subsequently the record of interview was translated into English. Both documents were marked as VD4 and VD4 (A) respectively. He submits there was no assault or threat used on the accused and he made the statement voluntarily. When cross-examined by the accused this witness submitted that accused was given all his legal rights. The accused suggested that he and D/C Sushil Deo was responsible for all the injuries on him. This witness denied the allegation. The accused further submitted that the statement was not given to him to read, the witness voluntarily denied the allegation and submitted to court that it was read to him and it was recorded in the statement itself.

20. When the prosecution closed the case for prosecution in the voir dire inquiry the accused opted to give evidence. He told court that he was assaulted by Sushil Deo and Devandra Vijay on the fingers and forced him to sign. Further he submits that he cannot read Hindi but only speak and understand. When cross-examined he admitted that he didn't ask about assault with witness Devandra Vijay. He said he couldn't tell the Doctor of the assault of injuries because he was threatened by IP Adip Singh.

21. I considered statements made at the charging session and the caution interview. I find that the Police had not forced the accused to make the statement because there is no direct admission of the offence by the accused.

22. Considering all materials before the Court, I am satisfied beyond reasonable doubt that the statement made by the accused at the caution interview was made voluntarily.

23. For the reasons stated above I allow the prosecution to produce the statement of the accused made during the caution interview at the trial proper.

S. Thurairaja
JUDGE

At Lautoka