State v Khan - Voir dire ruling [2015] FJHC 542; HAC70.2012 (10 July 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 70 OF 2012

STATE

V

MOHAMMED SAHMEEL KHAN

Counsel: Mr. A.Singh for the State
Ms. L. Jiuta for the Accused

Date of Hearing: 07th July, 2015
Date of Ruling: 10th July, 2015

VOIR DIRE RULING

(1) The State seeks to adduce into evidence the cautioned interview statement purportedly made by the Accused on 11thand 12thof October 2011respectively at the Namaka Police Station wherein he gave incriminating answers to questions regarding allegation of Rape.

(2) The Accused objects to the admissibility of his interview statement on the grounds that:

a. That the admission and/or confession were obtained by threats of abuse and coercion by Police Officers.

b. That he was never given any right to choose which language he wished to speak in.

c. That he was never given any right to consult his counsel or a family member.

d. That there was no Witnessing Officer present during the caution interview.

e. That he was never given the cautioned interview statement to read; however was forced by the Interviewing Officers into signing it.

(3) It is for this Court to decide whether the 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 (in this case the Police). Secondly, if I find that there has been oppression or unfairness, then I can in my discretion exclude the statements in the interview and the charge sheet. Finally, if any Accused's rights guaranteed under the Constitution have been breached, then that will lead to exclusion of the confession obtained thereby, unless the Prosecution can show that the suspect was not thereby prejudiced. These rights include the right:

(i) to have a legal representative of his choice; and

(ii) to have access to family or next of kin.

(4) The Fiji Court of Appeal in Ganga Ram and Shiu Charan v R 1983 (unreported) outlined the two-part test for the exclusion of confessions at p.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 (sic) 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) A.C. 599; DPP v Ping 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 police behaved, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. (R 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."

(5) In relation to voluntariness, breaches of the Judges Rules are relevant but do not determine what is voluntary. The real question under principle (e) under the preamble to the Judges Rules is whether the statement is 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". Oppression is something which "tends to sap and has sapped that freewill which must exist before the confession is voluntary".

(6) The burden of proving voluntariness, fairness, lack of oppression and of Constitutional rights in effect at the relevant times where applicable, and lack of prejudice (if there is) to the suspect, rests at all times with the prosecution. The Prosecution must prove these matters beyond reasonable doubt. In this ruling I have reminded myself of that.

I summarize evidence led in the inquiry in coming to my conclusion.

The Prosecution Case

(7) The State called three Police witnesses including the Interviewing Officer.

(8) Interviewing Officer DC1898 Aravind first gave evidence. The witness said that when he was based atSabeto Police Station in 2011,he inquired into a complaint made by one Fatima Nisha. Fatima had complained that her underage daughter SH was having an affair with a boy by the name of 'Pups'. SH, at that time, was living with her father, Anwar Hussain, in Namaka. In the process of investigation, they were asked to come to the Sabeto Police Station for questioning. It was transpired at the inquiry that SH has had sexual intercourse with one Mohammed SK, the Accused in the present case. Mr.Khan was then asked to come to the Sabeto Police Station and was interviewed on 2nd October 2011 with regard to the forceful sexual intercourse alleged to have taken place with SH.

(9) Mr.Khan denied the allegation and was released on the same day without framing any charge.

(10) On the instructions of Crimes Detective Officer Sumesh Prasad, DC. Aravind summoned Mr.Khan again on 11th October 2011 for further questioning in view of some witness accounts that were recorded, this time to Namaka Police Station.

(11) Having been given all his rights upon arrest, including the right to Counsel, Mohammed Shameel Khan was interviewed under caution in respect of the alleged unlawful sexual intercourse with SH. Interview was conducted in English, the preferred choice of language of the Accused and was supervised by Detective Inspector Sumesh Prasad. The Accused confessed to the crime and was produced before the Magistrate of Nadi on 13thOctober 2011. The Accused was not assaulted or threatened before or during the interview. No inducement or promise was held out to obtain the confession before or during the interview. Accused gave the interview voluntarily. The witness read the statement back to the Accused. Having admitted the content of the statement the accused signed it. Witness tendered in evidence the cautioned interview statement signed by the Accused and countersigned by him marked 'VD.1'.

(12) In cross examination, witness DC Aravind denied threatening or making abusive remarks. The Accused, though he was an Indo Fijian, opted to be interviewed in English. He was satisfied that the Accused was able to read and understand what was written in English.

(13) The witness DC Aravind also denied that he failed to explain to the accused the meaning of words 'unlawful carnal knowledge'.

(14) He said that he followed the proper procedure when he interviewed the Accused for the second time at Namaka Police Station instead of Sabeto Police Station. He also denied that failure by a witnessing officer to sign the interview statement was an irregularity or violated any internal policy guideline.

(15)The witness admitted having interviewed a suspect by the name of 'Pups'in relation to the same allegation and later released him without framing any charge against him. However, he denied having given any promise to the Accused that he too would be released as Pups had he confessed to the allegation.

(16) Witness Arvind denied receiving any complaint from the Accused that he was not in a proper mental condition to give an interview as his mother was hospitalized.

(17) Prosecution called the Charging Officer DC 3156 Ravinesh next, although the charge statement of the accused was not challenged by the Defence.

(18) Witness Ravinesh said that he was satisfied that the Accused was well versed in English when he opted to charge him in English.

(19) Accused made no complaint about the interview, admitted the allegation and signed the charge statement voluntarily. Charge statement was tendered marked as VD.2.
(20) Witness Ravinesh said, in his cross examination, that he properly explained to the Accused, before signing, what carnal knowledge meant. He admitted that there had been a printing error in the charge statement as to the place where the charging took place and said that the Accused was in fact charged at the Namaka Police Station.

(21) Prosecution called IP Sumesh as its last witness. He said that,in 2011, he served as the Supervising Officer of crime investigation and supervised both Namaka and Sabeto Police areas. On 11th October 2011, theAccused was interviewed by DC Aravind at Namaka Police Station under his supervision.

(22) The Accused was interviewed in English as it was his preferred choice of language. Hedid not complain of anything before or during the interview. He denied threatening the Accused or obtaining his signature by force.

Case for the defence

(23) Accused gave evidence and said that he was first summoned to the Sabeto Police Station on 04th October 2011.Officer Arvind interviewed him and asked whether he slept with Shainaza Hussain. He denied the allegation and was released on the same day.

(24) He was again summoned to Namaka Police Station on 11th October 2011 regarding the same incident. Officer Arvind interviewed him in Hindi as it was his preferred language. IP Sumesh was also present during the interview. The print-out of the interview statement that was given to him for signing was in English. Both Arvind and Sumesh forced him to sign the interview statement and gave the assurance that if he were to sign, they will let him go. He did not understand the nature of the allegation and the meaning of words 'carnal knowledge'.

Analysis

(25) I find that the evidence of the three Police Officers to be plausible and consistent. In his first ground of objection to admissibility, the Accused says that his confession was obtained by threats of abuse and coercion by police officers. The Prosecution witnesses vehemently denied those allegations. Accused himself admitted, in his cross examination, that the statement was recorded voluntarily. He also admitted that he never made any complaint to anybody including the Magistrate or the High Court Judge.

(26) In his second ground of objection, the Accused says that he was not given the right to choose the language he preferred. Prosecution witnesses denied the allegation and said that the Accused was given the option and he preferred to be interviewed in English. According to the cautioned interview statement it is apparent that the Accused had been given the right to choose the language he preferred and the Accused had signed, at the foot of answer No.02 in VD.1, acknowledging that he was given that right.

(27) When the Accused was asked to read question No.1 of the statement VD.1, he read it without any difficulty. He had studied up to Form 3 in a school in Fiji where English is the medium of instruction.

(28) The Accused said, in his cross examination, that he was satisfied with the manner in which the interview was conducted on the 11th of October 2011.He said, he understood the questions put to him and was satisfied with the answers gave on that day. This position is quite contrary to the position he maintained in his evidence-in-chief and also contradicted his position that he did not understand the questions put to him in English.

(29) The Accused said that his preferred language was Hindi. However, he said in cross examination, that he did not understand even the questions put to him in Hindi, his preferred language. This is quite unbelievable.

(30) The Accused said that he read the interview statement and came to know that what is written in it was not the true record of what he said in the interview. This clearly shows that he was capable of understanding what is written in English in the interview statement.

(31) I am convinced that the Accused understood the nature of the allegation and that he was lying to this Court.

(32) The Accused said in his cross examination that his Counsel did not consult him on voir dire ground filed in the Court and he came to know about them only when he was called to give evidence. He was thus challenging the very basis of this inquiry.

(33) The Accused admitted that he was explained his right to have his relative present at the interview. Although he said that he never exercised his right, he admitted that his father was present when the interview was in progress and he even spoke to his father.

(34) It was on 12th of October 2011,the Accused said that he was ill treated by the police officers who conducted the interview. Neither the Accused nor his father ever complained to anybody about alleged ill treatments the Accused is alleged to have received at the hand of the police officers. The inference that can be drawn is that there was nothing to complain about.

(35) The 4th ground of objection was on the basis that no witnessing officer was present during the interview. It was transpired at the inquiry that IP Sumesh was present at the interview as the Supervising Officer. The Accused himself admitted that IP Sumesh was present. Even though IP Sumesh did not counter sign the cautioned interview statement as a Witnessing Officer, I am satisfied that the Supervising Officer did indeed witness the interview.

(36) While the Accused do not have to prove anything, the burden of proof being on the Prosecution throughout, I find that the evidence of the accused is inconsistent, exaggerated and implausible.

(37) I accept the evidence of the Prosecution and reject the evidence of the Defence.

Conclusion

(38) The Prosecution has discharged the burden beyond reasonable doubt. Therefore, I find that the cautioned interview statement of the Accused to have been made voluntarily. I hold that the cautioned interview statement can be lead in evidence at trial and admissible.

Aruna Aluthge
JUDGE

At Lautoka
10th July 2015

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