State v Khan [2013] FJHC 612; HAC067.2009 (28 August 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL CASE NO: HAC 067 OF 2009

STATE

V

FAIYAZ KHAN
s/o Mubarak Khan

Counsel : Mr F Lacanivalu for State
Mr Tunidau for Accused

Date of Hearing : 12 - 23 August 2013
Date of Ruling : 28 August 2013

VOIR DIRE RULING

1. The State seeks to adduce into evidence the records of two cautioned interviews which the accused made on 13.9.2008 and from 23.1.2009 to 25.1.2009. The accused objects to the admissibility of both these documents on following grounds:
   
   1. That the statements were obtained in circumstances that were unfair to the accused,
      
   2. That accused was systematically softened during the interview in that he was kept in custody in circumstances which was degrading and inhumane,
      
   100. That the statements were obtained in circumstances that were oppressive,
        
   4. That the statements were obtained in breach of Rule 2 and 4 of the Judges' Rules,
      
   5. That the statements were obtained in breach of the Accused's right to counsel before his arrest, before his caution interview and whilst in custody,
      
   6. That the accused was threatened and assaulted by Police officers whilst in Police custody and as a result of the said assaults he made a confessional statement, and
      
   7. The accused was constantly threatened of further punishment if he did not cooperate with them by admitting the offence.
      
2. The test of admissibility of all confessional statements made to the Police officers is whether they were made freely and not as a result of threats, assaults or inducements made to the accused by person or persons in authority. Further, oppression or unfairness also lead to the exclusion of the confession. Finally, where the rights of the suspects under Section 27 of the Constitution have been breached, this will lead to the exclusion of the confessions obtained thereby unless the prosecution can show that the suspect was not thereby prejudiced.
   
3. The preamble of 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 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."

4. 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 the 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.

5. The Fiji Court of Appeal in case of the Ganga Ram and Shiu Charan v R (FCA Crim. App.
46/1983) outlined the two-part test for the exclusion of confessions at page 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 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 'flatter of hope or the tyranny of fear.' Ibrahim v R (1914) A.C. 559; DPP v Pin 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 the police behaved, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. Regina v Sanag [1979] UKHL 3; (1980) A.C. 402, 436CE). This is a matter of overriding discretion and one cannot specifically categorize the matters which might be taken into account."

6. It is for me to decide whether each of the two interviews was conducted freely and not as a result of threats, assaults or inducements made to the accused by a person or persons in authority. Secondly if I find that there has been oppression or unfairness, then I can in my discretion exclude the interviews. Finally, if his rights under the Constitution or common law 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 such rights as having a legal representative of his choice and having access to family, next-of-kin or religious counselor.
   
7. The burden of proving voluntariness, fairness, lack of oppression, compliance with common law rights, where applicable, and if there is noncompliance, lack of prejudice to the accused rests at all times with the prosecution. They must prove these matters beyond reasonable doubt. In this ruling I have reminded myself of that.
   
8. Now I look at the evidence presented in respect of each caution interview.
   
9. Both these interviews were conducted by Sgt. Simione. He is in police force for 19 years. He was the investigating officer of this case. He had arrested the accused on 12.9.2008 at 1900 hours after cautioning him, at his house. No one assaulted the accused at the time of arrest. He was searched and locked at Sigatoka police station that night.
   
10. The first caution interview was commenced at 1550 hours on 13.8.2008. The accused was not forced or assaulted before the interview. He was not threatened to make an admission. The interview was in question and answer format. The accused was not assaulted during the interview. The accused was given opportunity to consult family member or lawyer. The accused had called his lawyer. The accused was given opportunity to rest. During the interview no inducement, promise or threat made to the accused. After the interview the content was read over to the accused and opportunity was given to him to add, alter or delete. He had counter signed. There were others working in the same room. The cautioned statement was read out and marked as exhibit No.8. The accused was released after the interview.
    
11. The accused was again arrested on 21.1.2009 at his residence in Semo, Sigatoka. The accused was handed over to Cpl. Roma. The accused was not assaulted during the arrest. The accused was arrested in connection with harboring a prisoner.
    
12. On 23.1.2009 he had received the accused at Anti Money Laundering Unit office at Suwa at 10.00 a.m. He was given a meal. He had not observed any injuries on him. The accused had not made any complaints. The witnessing officer for the interview was Cpl. Aiyaz Ali. The accused was not assaulted before the interview. He was not forced or threatened to make an admission. It was taken in question and answer format. Accused was given opportunity to contact family member or lawyer. The accused was given time to rest, eat and drink. After the interview the content was read back to the accused. He was given opportunity to add, alter or delete. The accused had signed and he had counter signed. The interview was concluded at Sigatoka police station on 25.1.2009.
    
13. In cross examination witness had admitted that in the first interview he had not recorded the fact, interview was read back to the accused and he was given an opportunity to add, alter or delete. He denied not reading back the content to the accused. He had also admitted that the witnessing officer had not signed the interview. It was put to this witness that Q112-Q115 was the way it happened.
    

Q112: Have you given your answers to my question in your freewill?

Answer: Yes.

Q113: I would like to inform you that all items that are being seized from your shops, will be kept in Police custody, do you understand that?

Answer: Yes.

Q114: Was there any force, threat or ill treatment done to you during the record of our interview?

Answer: No

Q115: Can you sign this record of interview to confirm that this is the true copy of our record of interview?

Answer: Yes

The witness admitted this position put by the defence counsel.

14. He denied noticing the accused having a red eye and he was in pain. He had admitted seeing the accused showing his buttocks with bruises to the Doctor. He admitted commencing the interview 5 minutes after returning from hospital. He admitted that there are several injuries according to the medical report. He had noticed accused having brushes on buttocks at the time of medical examination. But he had not inquired about those from the accused. He had further stated even if accused had these injuries he could go ahead with the interview.
    
15. The only other witness for the prosecution in respect of the first interview was Alipate Matai. On 12.9.2008 he was attached to Transnational Crime Unit. He was assisting DS Simione in an inquiry into stolen cheques. They have gone and arrested the accused at his residence. Then accused was taken to Sigatoka police station. He was interviewed there. That was concluded on 14th. At the time of arrest or in the custody no one assaulted the accused. He had not received any information of assault. There was no complaint after the accused was released. He had identified the accused.
    
16. While under cross examination he had denied assaulting the accused at the time of arrest and at the police station. He further denied threatening the accused. According to him Sgt. Meli was witnessing officer. He was present in the same room at the time of the interview. It was an open room.
    
17. Several police officers were called on behalf of the prosecution in respect of the second cautioned interview. They include the witnessing officer, the orderlies of the police stations where the accused were kept during and after the interview and the officers who took part in the arrest of the accused on 21st and 23rd of January 2008. All of them stated that accused was not assaulted or threatened the relevant period. Further they have not witnessed such incident or received such information.
    
18. In cross examination of each of these witnesses it was put to them that accused was injured due to police assault of 21.1.2009 and he had a red eye, he was limping while walking and was in great pain. Those suggestions were denied by all the police witnesses.
    
19. The doctor who examined the accused on 23.1.2009 also gave evidence. Doctor Reapi Natula had examined the accused on 23.1.2009 at 1855 hours. The accused had complained that he was assaulted by Police officers two days ago. The accused was limping when he walked in and had a red eye. His buttocks were bruised. The left knee was swollen and there was tenderness. All these injuries were more than 12 hours old. The accused was complaining of pain and pain killers were given to him.
    
20. The last witness for the prosecution was ASP Puran Lal. On 23.1.2009 accused was brought to Anti Money Laundering Unit. The solicitor of the accused Mr. I Khan had come and seen him that day. He had requested a medical examination of the accused. It was done. After seeing the medical report same day he had informed Mr. Khan that a complaint could be made. He had not received any information of assault on accused.
    
21. In cross examination he stated that he did not see a red eye on accused when he met the accused on 23.1.2009. He had not noticed the accused limping. He admitted seeing the medical report. He decided to continue with the interview as accused had said he could continue.
    
22. After the close of the prosecution case I found a case to answer from the accused in the trial within a trial.
    
23. The accused gave evidence. His position was that he was arrested on 12.9.2013 by Sgt. Simione and four other police officers. He was then taken to Sigatoka police station. He was slapped by other officer with Sgt. Simione. (Alipate Matai). The next day the interview was conducted. He had signed all the pages after the conclusion of the interview. It was never read over to him or he was given an opportunity to read.
    
24. When he was asked "Do you really know what is the content of the interview?, when you sign on the interview?" His answer was "Yes, I know what I had said. I have signed it." In cross examination also he had admitted this position.
    
25. On 21.1.2009 four police officers have come to his residence and had dragged him by collar to a van. He was taken towards Lautoka and 1km away the van was stopped and a spray was put to his eye. After that he was assaulted on his left leg with an iron rod. Thereafter he was taken to Lautoka police station. There his cloths were removed and he was assaulted with police batons by two officers for more than one hour. There were five officers. He was released from Lautoka court on 22.1.2009. His wife took photos of his injuries using a Digital camera at home. Although he had serious injuries and he was in pain he did not go to a doctor as he could not arrange transport.
    
26. When he was getting ready to go to hospital on 23.1.2009 he was arrested at his home by four police officers. He was taken to CID office in Suva. He was in pain and he complained about that to Sgt. Simione and IP Puran. After his solicitor Mr. I Khan came he was taken to the hospital. At the time of examination Sgt. Simione was present. After the medical examination the interview had resumed. He was taken to the Central police station in Suva after the interview.
    
27. The interview had continued on 24.1.2009 although he was having body pain and a headache. After the interview he was taken to Sigatoka and produced in court on 26.1.2009. He had shown the injuries to the Magistrate.
    
28. After the court appearance on instructions of his solicitor his wife had taken photographs of his injuries using a digital camera.
    
29. Under cross examination he denied reading the caution interview of 13.9.2008 before signing it. He could not recall complaining to Lautoka Magistrate about his injuries on 22.1.2009. He admitted not going to a doctor or hospital on 22.1.2009 even though family members and friends visited him same day. He had not reported to police or Human Rights Commission about his injuries.
    
30. He was not assaulted by Sgt. Simione at the time of arrest on 21.1.2009.
    
31. The wife of the accused gave evidence on behalf of the defence. She had taken the photographs of the accused with injuries on 22.1.2009 and 26.1.2009. She produced those photos identifying them. In cross examination she admitted that even though relatives and friends came to her house on 22nd evening and the accused was in pain they did not take the accused to a doctor or to hospital. Further she admitted that no complaint was made to police or Human Rights Commission.
    
32. I have carefully considered the available evidence in respect of the first cautioned interview on 13.9.2008.
    
33. Accordingly I have come to the view that in regard to any allegation of assault by the police the state had satisfied me beyond reasonable doubt that it did not happen. I reject the evidence of the accused that he was assaulted before this cautioned interview. I am satisfied that the interview was voluntary, that it was obtained in fair circumstances, that it was in no way oppressed or beaten out of the accused in contravention of his rights either under the Judges' Rules or of the Constitution which was then operative.
    
34. The first interview on 13.9.2008 being voluntary made and not created out of oppression is therefore admissible in evidence.
    
35. When considering the available evidence in respect of the second cautioned interview I have come to the view that there were some injuries present on the accused at the time of that interview. This is considering the evidence of the accused and the doctor who examined him on 23.1.2009.
    
36. The word 'oppression' in the context of deciding the voluntariness of a confession attracts the ordinary dictionary meaning as ruled by the English Court of Appeal in R v Fulling [1987] EWCA Crim 4; [1987] QB 426 at 432, 85 Cr. App. R.136 at 142. The Oxford English Dictionary defined 'oppression' to include:
    

'... exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors etc., or the imposition of unseasonable or unjust burdens.'

37. The police officers have continued with the cautioned interview even after it was noticed in the medical examination form that the accused was having injuries and he was in pain. Even if the accused had consented to continue with the interview there is evidence that they hurried through the process. There is no justification to proceed with the interview without reasonable interval for the accused to recuperate from the pain and injuries. In the circumstances I hold that the accused was oppressed or at least there is a reasonable doubt that he was oppressed at the second cautioned interview, which the prosecution has failed to displace.
    
38. I, therefore rule out the admissibility of the alleged cautioned interview on 23.1.2009.
    

Sudharshana De Silva
JUDGE

At Lautoka
28th August 2013

Solicitors : Mr Tunidau for the Accused
Office of the Director of Public Prosecutions