State v Hakik [2015] FJHC 215; HAC229.2011 (25 March 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 229 OF 2011

STATE

v

MOHAMMED HAKIK

Counsels : Mr Singh for the State
Ms Jiuta for Accused

Date of hearing : 24 March 2015
Date of Ruling : 25 March 2015

VOIR DIRE RULING

1. The State seeks to adduce into evidence the record of a caution interview of the accused on 3.12.2011.The accused objects to the admissibility of this document on the grounds that this statement was obtained after assaults, threats and oppression.
   
2. The test of admissibility of all confessional statement made to the Police officer, is whether that was 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 leads to the exclusion of the confession. Finally, where the rights of the suspects under Section 27 of the previous 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 interview 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 interview. 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. The voir-dire grounds of the accused are:
   

THAT the accused was assaulted and threatened by police officer for quite some time.

THAT the manner in which the accused was treated in the hands of Nadi Station Police Officer was inhumane and degrading.

THAT the manner in which the Caution Interview was conducted and executed was involuntary.

THAT the Caution Interview has been fabricated.

THAT proper procedures were not followed during Caution Interview.

9. Now I look at the evidence presented in respect of the caution interview.
   
10. The first witness for the prosecution was DC Omendra Gupta. He is an officer with 10 years' experience. He is the investigating officer of this case. He had arrested the accused at his house in Mulomulo, Nadi. The accused was not assaulted, threatened or induced at the time of arrest by him or the other officers. The accused was given his rights at the time of the arrest. He was not assaulted, threatened or induced on the way to the Nadi police station.
    
11. After he was brought to the station he was caution interviewed at the crime office at 17.30 hours. DC Nitesh was the witnessing officer. The accused did not make any complaint prior to the interview. Prior to the interview accused was physically inspected by him. The accused appeared to be physically fit and fine. The accused was not assaulted, threaten or induced prior to the interview by him or other officers. The interview was in question and answer format and conducted in Hindi language. It was later translated to English language. The accused was given his rights during the interview. He was given sufficient breaks and refreshments. The witnessing officer was present throughout the interview. The accused was not assaulted, threatened or induced during the interview. The interview was suspended on 3.12.2011 at 18.50 hours. Then the accused was taken to station to have a rest.
    
12. On 4.12.2011 the interview was commenced at 9.00 hours. The accused did not make a complaint prior to the interview on 4.12.2011. The witnessing officer was present. The accused was physically fit and there were no injuries on his body. The accused was not assaulted, threatened or induced by him or any other officer on 4.12.2011. The accused was taken for a reconstruction of the scene. He was not assaulted, threatened or induced by him or any other officer at the reconstruction. The interview was concluded at 17.00 hours. It was read to the accused. He, witnessing officer and the accused signed the interview notes. The accused did not make any complaint at the conclusion of the interview.
    
13. He identified and tendered the interview notes and translation marked VD 1 &2. The accused did not make any complaint at any point of time.
    
14. Under cross examination he denied that the accused was not cautioned at the time of arrest. He admitted that when the accused was brought to the station his details are recorded in the station diary. He agreed that the interview was conducted in the general area of the crime office. He denied that he had a stick in his hand during the interview. He denied that the accused denied the allegation. His position was that the accused cooperated with the police. He denied that witnessing officer was not present during the interview. He denied that accused was forced to sign the interview. He denied that witnessing officer signed only after the interview. The accused was physically fit and answering the questions voluntarily. He denied assaulting the accused with a wooden stick during the interview. He denied threatening the accused to admit the allegations.
    
15. The second witness for the prosecution was DC Nitesh. He is an officer with 10 years' experience. He is the witnessing officer in this case. He identified the accused in Court. The interview commenced at 17.30 hours on 3.12.2011 at the crime office. The accused was not assaulted, threatened or induced by him or any other officer prior to the interview. He was present throughout the interview. During the interview the accused was not assaulted, threatened or induced by him or interviewing officer. He was present for the interview on 4.12.2011. He was not assaulted, threatened or induced on 4.12.2011 by him or any other officer. He, the accused and interviewing officer signed the interview. The accused was not pressured to sign the interview. He identified VD 1&2 in Court. The accused did not make any complaint at the conclusion of the interview to him or any other officer.
    
16. Under cross examination he denied that he was not present on 3.12.2011 for the interview. He also denied that on 4.12.2011 he only came to sign the interview.
    
17. With that evidence prosecution closed their case in the voir dire inquiry. As there was a case to answer by the accused in the trial within trial defence was called and his rights were explained.
    
18. The accused gave evidence. He stated that he was arrested on 3.12.2011 while he was at home by Officer Gupta. He was taken to Nadi station. He was only told that his wife and kids are fighting. We will just put a report and let you go back home. Gupta made him to sit on a bench on Saturday during the day till the night. Then he was shifted to the cell. When asked about the caution interview he said that he thought that they were just putting a report about fighting at home. It was done in English and he wasn't aware. He was given meals while at the station. He was interviewed on the Sunday. It was by Gupta on the crime room. He was handcuffed. Gupta was beating him with a small stick on his chest plenty times. It was also with his fist. Gupta was assaulting him and asking him. It was about girls at home. He wasn't aware about the allegations. He signed the interview on Monday morning. He did not know what he was signing. Gupta read him only one page. Gupta told him that is all about it. When Gupta was putting allegations to him he felt bad. He was looking after the kids. After the interview he was taken to Lautoka Magistrate Court.
    
19. He did not complaint to any officer about what Gupta did to him. He did not complaint to the Magistrate. He wanted to say but was asked to go and sit. He had no idea what was on that paper as he is uneducated.
    
20. Under cross examination he said that he was taken by police and beaten. He was told that he raped a girl. The stick that Gupta beat him was 2 inch in width and 1 ½ feet long. He was hit lot of times on the chest. He was beaten hard and it was painful. When he was asked whether he received any injuries the answer was that for long time he could not walk as it was paining. He did not go for medical checkup. He was in pain when he went to the Magistrate Court. He had pain till two months in remand. He did not report to the Magistrate about what Gupta did to him. When he was produced in High court he was still in pain. He did not complaint to Judge. He was not allowed to ask anything and was made to sit down. He got bail on 30.1.2012. He did not make a complaint thereafter.
    
21. In re-examination he said that he told Gupta that he is in pain and wanted to go to hospital.
    
22. I have carefully considered the available evidence in respect of the caution interview on 3.12.2011 of the accused.
    
23. 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 during this caution 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 not in operation.
    
24. The caution interview of the accused on 3.12.2011, being voluntary made and not created out of oppression is therefore admissible in evidence.
    

Sudharshana De Silva
JUDGE

At Lautoka
25 March 2015

Solicitors: Office of the Director of Public Prosecution for the State
Office of the Legal Aid Commission for Accused