State v Kishore - Voir Dire Rulings [2015] FJHC 323; HAC75.2014 (29 April 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
Criminal Case No: HAC 75 of 2014

STATE

v

SUDESH ANAND KISHORE

Counsel: Ms J Fatiakifor the State
Mr R Kumar for the Accused

Date of Hearing: 27th April 2015
Ruling: 29th April 2015

RULING
[Voir Dire]

1. The accused person challenges the admissibility of his caution interview statementthat he purportedly made to the police on 04.06.2014.
   
2. The grounds for challenge are:
   
   1. That his confessions were obtained involuntarily through pressure, duress and force by the police at the Sigatoka Police Station.
      
   2. That on the 03/06/14 he was arrested and taken to the police station. He was not told why he was being taken to the police station.
      
   3. That at the police station he was taken to the cell without being given any dinner.
      
   4. That an Indian police officer rubbed chilies on the accused eyes. The accused was assaulted by the interviewing officer Ashwin. He grabbed the accused by the throat and started to choke him until the accused could not breathe.
      
   5. That the accused could not take the pain anymore and gave a false confession to the allegations put to him.
      
   6. That the Interviewing officer Ashwin wrote the questions and answers in English language and never explained what was being written to the accused. The Interviewing officer grabbed the accused hand and made him sign on the caution interview.
      
   7. That the accused asked to be taken to see a doctor but he was refused.
      
3. The prosecution must prove beyond reasonable doubt that the confession made by the accused was voluntary, and was made without threats, inducement, promise or oppression. Also prosecution must prove that the accused was given his rights and if his rights were breached that he was not prejudiced by that breach.
   
4. On behalf of the Prosecution the Arresting Officer Sgt Clifford Waqabaca gave evidence first. He has arrested the accused on 03/06/14 at the 24 Hour Grog Shop adjacent to the FNPF Building with W/Constable Mereseini. He said that accused cooperated and that the accused was explained of his arrest.
   
5. He denied when it was suggested to him that the accused was arrested at FNPF Building while he was painting. Officer Ashwin had been the driver of the police vehicle. Accused was explained his rights. He was handed over to the Police Station Orderly. He said that the accused was never assaulted, threatened and the accused had not complained of anything.
   
6. The next witness was W/Constable Mereseini who went with Sgt. Clifford to arrest the accused. She also had been the Investigating Officer.
   
7. She said she saw the accused being interviewed by D/C 3886 Ashwin at the Crime Office. Accused voluntarily got into the vehicle when he was arrested by Sgt. Clifford, she said. In her presence no officer had threatened or assaulted the accused.
   
8. She denied that Officer Ashwin grabbing the neck of the accused when it was put to her during cross-examination. Also she denied Officer Ashwin forcing accused to sign at certain places in the caution interview.
   
9. She also said the accused never complained of anything.
   
10. In cross-examination she said the Interviewing Officer wrote down the interview statement with a pen. However when it was suggested by the Defence Counsel that the interview was typed in a computer she accepted that it was typed.
    
11. Prosecution called Ashwin Kumar next to give evidence. His evidence was that he was the driver of the vehicle which went to arrest the accused. He said that Officer Clifford and W/PC Mereseini went with him and arrested the accused. He had known the accused before personally. In cross-examination when it was put to him that the accused was working at FNPF Building, he said that he parked the vehicle at Main Street and he was in the vehicle.
    
12. The next witness was W/SP/C MaraiaKuini. She had been on Charge Room duty and she produced the Station Diary which reflected that WDC Mereseini brought the suspect at 10.40 pm on 03/06/14.
    
13. She said that the suspect was not assaulted by any officer. Accused was not given dinner that day, dinner is served at 6 pm to the suspects.
    
14. The Prosecution called witness KunalRaza Pasha next. He had been the Station Orderly on 04/06/14. He had released the suspect at 10.30 am to be caution interviewed. He said that the suspect was escorted by officer Sunil and that he did not see suspect being assaulted at any time.
    
15. He had known accused personally as he was staying in the same village. He had spoken to the suspect in the cell. He denied taking the suspect out of the cell and taking him to the interview.
    
16. The next witness was Seru Musuidroka who maintained the meal registry. Producing the meal registry he said that the suspect was given breakfast and lunch on 04/06/14.
    
17. Interviewing Officer Ashwin Chand giving evidence said that the interview was recorded on computer and that the suspect, Witnessing Officer and he signed the same. Suspect was cautioned and breaks were given during the interview. Suspects' step-mother Anshu Priya Lal has visited the suspect during the interview. His rights were given.
    
18. He said that no officer assaulted the suspect. Contents of the caution interview statement were read over to him. It was recorded in English and was translated to the suspect in Hindi.
    
19. He said the Officer Shameem was not there full time but as the interview was recorded in the Crime Office Shameem was there on some occasions.
    
20. He denied grabbing suspect's neck and assaulting him on his knee with a baton. Denied forcing him to sign.
    
21. Witnessing Officer Sunil Dutt in his evidence said that he was the Witnessing Officer of the caution interview of the accused. He said that they never offered the accused any inducement nor they threatened him. They never rubbed chilies on him. Accused understood the questions. He also had been the Charging Officer. He said that the accused was charged in English. He also said that officer Shameem was not present at the interview. He had no idea whether Shameem was at work. He said at the caution interview questions were asked in English and was translated to Hindi. He denied assaulting the accused and forcing him to sign. Denied applying chilies on accused. Denied assaulting him with a baton.
    
22. After the evidence for the prosecution was concluded accused gave evidence. He said that he was arrested when he was sitting and having kava. He said that he can understand and talk in English a little bit.
    
23. When he was arrested he was never told why he was arrested. They did not read the Judges Rules to him. At Police Station he was put in the cell and not given food. Nobody came to see him at the Police Station next day.
    
24. Police Officer Pasha whom he knew from last year had taken him out of the cell and taken him to the Crime Office for the caution interview. Ashwin strangled his neck, he said. Shameem had applied chilies all over his face. Then he was asked to sign. When he refused he was hit by a police baton on the knee. He was forced to sign. Forcefully held his hand and made him to sign, he said. He said that Sunil Dutt was never present at the interview. No charge statement was read to him. The document which he was forced to sign was not read over to him.
    
25. He also said that his knee got hurt and wanted to go to the hospital. He was not taken to hospital.
    
26. In cross-examination he said that he was arrested by two male Fijian officers. Driver had been a Fijian man.
    
27. He admitted that he was taken to Police Station by 10.30 pm and that the following day he was given breakfast. He admitted that he was lying in Court when he said that Ashwin did not tell him that he wanted to take his interview.
    
28. He admitted that he was allowed to speak to his mother on his mobile phone and admitted that he was afforded the right to contact the person of his choice.
    
29. However, he said that the caution interview was handwritten. He also said the allegation of rape was put to him. He said that he mentioned about the assault to the Court in Nadi. He said that he was taken to Magistrates Court by Ashwin and Shameem and not by DC Navin and Tomasi as recorded in the Station Diary. That was the evidence for the defence.
    
30. In his voir dire grounds the accused alleged that he was grabbed by officer Ashwin by his throat and started to choke him. Police Officers including the Interviewing Officer Ashwin denied any kind of assault on accused. Accused also said that chilies were rubbed on his face. Although voir dire grounds did not disclose, accused said that he was assaulted on his knees by a batton and he was hurt.
    
31. None of these allegations were informed to the Magistrates Court when he was produced.
    
32. Accused said that he was taken to the Magistrates Court by Ashwin and Shameem although the Station Diary shows it was by some other officers.
    
33. I bear in mind that the accused had been unrepresented in the Magistrates Court. However, he never informed even the High Court of these allegations until he mentioned that by a letter to the Hon. Judge moving for bail. He has appeared in High Court on few occasions prior to the said bail application (letter). If his knee was injured or he got hurt, he could have got an order for treatment even at that stage in High Court.
    
34. The accused said that chilies were rubbed on his face by Shameem. On the evidence placed by the Prosecution, the caution interview was recorded in the Crime Room where other officers have access. Officer Ashwin testified that Shameem was not present full time but was there on some occasions, which can be accepted as it was a room common for the officers who work there.
    
35. I find that the evidence of the Police Officers were truthful when they said that the accused was never assaulted, threatened or induced, nor chilies were put on his face. I also find that the evidence of the accused that he was assaulted, threatened, forced and chilies was put on his face was not truthful. Hence I find that the prosecution has proved beyond reasonable doubt that the accused made his caution interview statement voluntarily.
    
36. In his evidence, the accused admitted that he was given the opportunity to contact a person of his own choice where he contacted and was allowed to see his mother.
    
37. Police Officer testified that the rights were given to the accused.
    
38. In cross-examination it was put to the Arresting Officers by the defence that the accused was at work painting at FNPF building. However, accused in his evidence in cross-examination admitted that he had knocked off at 9.30 from work and was drinking grog with friends when he was arrested. From the time of arrest defence suggested that the rights were not given to the accused.
    
39. Accused was brought to the Police Station at 10.40 pm. which was clearly after the normal dinner time. He was given breakfast on the next day before the recording of the caution interview and also given lunch during the break.
    
40. Therefore I also find that the accused was given all his rights and the Police have not breached any of the accused's rights.
    
41. Hence I find that the caution interview statement to be admissible in evidence.
    

Priyantha Fernando
Judge

At Lautoka
29th April 2015

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