State v Khan - Voir Dire [2015] FJHC 560; HAC01.2015 (28 July 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 01 OF 2015

BETWEEN:

STATE

AND:

1. MOHAMMED SHAHEED KHAN
2. ETHAN KAI

Counsel : Ms. S. Kiran with Ms. Fatiaki for Prosecution
Mr. Iqbal Khan for 1stAccused
Mr. J. Peluso with Mr. A. Singh & Ms. Subeska for 2ndAccused

Date of Hearing : 6th – 10th and14th – 17th of July 2015
Date of Ruling : 28th of July 2015,

RULING ON VOIR DIRE

1. The Prosecution proposes to give in evidence the caution interview of the first accused person, for which the first accused person (hereinafter referred as the accused) objected. The objections of the accused person are founded on the following grounds that; ( quote)
   
   1. That the statements were obtained in breach of section 12 of the 2013 Constitution.
      
   2. That when the accused was arrested he was not informed promptly, in a language that he understood, of –
      
      1. The reason for the arrest or detention and the nature of any charge that may be brought against him;
         

ii) The right to remain silent; and

2. The consequences of not remaining silent;
   
100. to remain silent;
     

4. to communicate with a legal practitioner of his choice in private in the place where he was detained and was not informed of that right promptly and he was not informed that if he does not have sufficient means to engage a legal practitioner to be given the services of a legal practitioner under a scheme for legal aid by the Legal Aid Commission;
   
5. He was not informed that he cannot be compelled to make any confession or admission that could be used in evidence against him;
   
6. He was not informed his right to communicate with, and be visited by,-. His spouse, partner or next of kin; and Social worker or religious counsellor
   
7. The Accused was denied his right to consult a Solicitor when arrested and after arrest;
   
8. That the statements were obtained in circumstances that were unfair to the Accused;
   

(i) The Accused was systematically softened during the interview in that he was kept in custody in circumstances which was degrading and inhumane;

1. That the statements were obtained in circumstances that were oppressive;
   

10. That the statements were obtained in breach of Rule 2, 4 and 7 of the Judges' Rules." ( unquote)
    

2. The voir dire hearing was conducted from 6th- 10th and from 14th to 17th of July 2015, where the prosecution called eleven witnesses. The accused gave evidence on oaths and called one witness for the Defence. At the conclusion of the hearing both the counsel were invited to file their respective closing submissions, which they filed accordingly. Having carefully considered the evidence adduced during the course of the hearing and the respective submissions of the parties, I now proceed to pronounce my ruling as follows.

The Case of the Prosecution,

3. The prosecution adduced evidence in order to establish that the accused was arrested properly and his caution interview and charging statement were obtained fairly and voluntarily. According to the evidence presented by the prosecution, the accused was arrested at 11p.m on the 20th of December 2014. He was found in his compound when the arresting team lead by I.P. Aiyaz reached there. He was then taken to the Border Police Station. I.P. Aiyaz went into the police station in order to make arrangements and to have the caution interview recorded. The accused was remained in the police vehicle with three other police officers. They then took him to the Nadi Police Station. The time was around 12.30 a.m. when they reached to the Nadi Police Station. The caution interview was commenced at 12.30 a.m. and suspended at 12.55.a.m. for the accused to rest. He was locked in the cell in the Nadi Police Station.
   
4. He was taken to Sabeto Police Station in the following morning of 21st of December 2014. The caution interview recommenced at 9.45 a.m. and suspended at 12.12 p.m. for the searchto be carried out at the Lautoka Wharf, the house of the accused and his business yard. The caution interview was recommenced at 10.49 p.m. and suspended at11.10 p.m. The accused was then locked in the cell of the Sabeto Police Station. Before the accused was taken to the Sabeto Police Station, I.P. Aiyaz has called the brother of the accused, Mr. Naveed on his mobile phone and has informed him about the arrest of the accused. He was further advised by I.P. Aiyaz that he could contact him anytime if needed. Mr. Naveed visited the Sabeto Police Station on 21st of December 2014 and met Aiyaz. The accused was given meals and adequate rest during the course of recording the caution interview.
   
5. The accused had given time to be with his family in private when he was taken to his house in the night of 21stDecember 2014 for the search. He has hada shower and refreshment. His brother and a lawyer who is a neighbour of the accused were also present at that time.
   
6. The caution interview was recommenced at 10.10 a.m. on 22nd of December 2014 at the Sabeto Police Station. The accused met his brother and his solicitor after the lunch break of the caution interview. The caution interview was concluded at 9.00 p.m. Subsequently, he was formally charged at the Sabeto Police Station. He was then taken to Namaka Police Station and produced in the Nadi Magistrates' courts on 23rd of December 2014.
   

The Case of the Accused,

7. The accused stated in his evidence that he was not given any rights or not informed about the reason for his arrest when he was arrested in the night of the 21st of December 2014. He stated that IP Aiyaz came to his house and asked him to come down with him. Accordingly, he came down with I.P. Aiyaz. When he came out of the gate, he was pushed into a police vehicle which was parked in front of his house. He was taken to Vuda area and then to Border Police Station. He was not allowed to contact his wife or any other family members. He was then taken to Nadi Police Station. He was not given or explained any of his constitutional rights when the caution interview was commenced at the Nadi Police Station.
   
8. He was locked in a cell in the Nadi Police Station, which was in an appalling andan inhuman condition. He had not had a proper sleep in the night. He was then taken to Sabeto Police Station in the morning of 21st of December 2014. He was not given any rights when the caution interview was recommenced. He stated that he was not given meals on time. When he was taken to the Lautoka Wharf to carry out the search, he volunteered and helped the investigation team. He admitted that he had his shower and a cup of tea when he was taken to his house for the continuation of the search. He was allowed to talk to his wife and children, but not in private as Cpl Nilesh was behind him all the time.
   
9. The accused contended that he was not allowed to meet his solicitor and his brother when they came to meet him and was forced to sign the caution interview before he met them. He then informed the investigation officer that he would exercise his right to remain in silence. However, he was threatened by the interviewing officer that if he do so, they will arrest his wife. That left him with no option but to continue with the caution interview.
   
10. Having briefly considered the background of the case of the prosecution and the accused person, I now turn onto discuss the applicable laws pertaining to the issue of admissibility of the confessionary statement of an accused in evidence.
    
11. The scope of the hearing of voir dire is extended only to the admissibility of the confessionary statement of the accused in evidence. The probative value of it still remains for the assessors during the trial proper. (G vs UK( 9370/81, 35 DR 75).
    
12. Lord Carswell in R v Mushtaq ( [2005] UKHL 25; 2005) 3 All ER 885, at 908 held that;
    

"It has long been recognised that the content of a confession made by an accused person has to be evaluated with great care in order to determine whether it can safely be accepted as an admission against his interest. The approach of the law to that evaluation has varied over the years and the rules applied by the courts have to be kept under review to ensure that they reflect the standards accepted by each generation".

13. Accordingly, it appears that the court is required to adopt a cautionary approach in order to admit the confession of an accused in evidence. Justice Gounder in State v Akanisi Panapasa (Criminal Case No 34 of 2009) has outlined the general rule on admissibility of confession, where his lordship found that;
    

"As a matter of general rule, a confession made by an accused person to a person in authority out of court is admissible only if the confession was made voluntarily. The rule which was developed by the English common law is the state of law in Fiji".

14. Lord Griffiths in Lam Chi-Ming and others v R ( 1991) 3 All ER 172) having discussed the recent developments in English cases found three main objectives for the rejection of an improperly obtained confession. His Lordship held that;
    

"Their lordships are of the view that the more recent English cases established that the rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviours by the police towards those in their custody. All three of these factors have combined to produce the rule of law applicable in Hong Kong as well as in England that a confession is not admissible in evidence unless the prosecution establish that it was voluntary".

15. Lord Griffiths' observation in Lam Chi-Ming ( supra)has further been elaborated by Lord Carswell in R v Mushtaq (supra), where his lordship held that;
    

"It has to be born in mind that a confession which has been properly obtained may nevertheless be untrue. The unhappy example of Judith Ward (R v Ward (1993) 2 All ER 577,) serves as a reminder of this. Conversely, if a confession had been obtained by means which the law condemns as improper, it is quite possible that it may nevertheless be true, a fact which would cause no surprise to anyone with experience of criminal practice. Improper compulsion creates a risk, however, that the confession may be untrue, and this makes it unsafe to rely upon it, and the more considerable the compulsion or oppression, the greater the risk that the confession is unreliable. One may add to this risk the two further factors which have influenced the law in rejecting confessions obtained by compulsion, the right against self-incrimination and the need to exercise a degree of controlling discipline over undesirable police practices".

16. Accordingly, it appears that the principle of rejection of an improperly obtained confession is founded on three main grounds,
    
    1. Unreliability of the confession,
       
    2. Rights against self-incrimination,
       
    3. To prevent undesirable police conduct on the person in their custody.
       
17. Having understood the principle of rejection of improperly obtained confession, I now turn onto the issues of test of voluntariness. The Privy Council in Wong Kam –Ming v The Queen (1982) A.C. 247 at 261 has discussed the basic control over admissibility of statement, where it was held that;
    

"The basic controls over admissibility of statement 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 Summer 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."

18. The Fiji Court of Appeal in ShiuCharan v R (F.C.A. Crim. App. 46/83) has discussed the applicable test to determine the voluntariness of caution interview, where it was held that;
    

"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 or prejudice or inducement by offer of some advantage - what has been picturesquely described as "the flattery of hope or the tyranny of fear." Ibrahim v R (1914) AC 599.DPP v Pin Lin (1976) AC 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 Sang [1979] UKHL 3; (1980) AC 402, 436 @ c - E." (State v Rokotuiwai - [1996] FJHC 159; Hac0009r.95s (21 November 1996).

19. It appears that the test enunciated in ShiuCharan (supra) constitutes two components. The first is the test of oppression. The court is required to satisfy that the statement in the caution interview had been taken without any form of force, threats, intimidation, or inducement by offer of any advantage. The second component is that, even though the court is satisfied that the statement was given voluntarily without any form of threat, force, intimidation or inducement, it is still required to satisfy that no any general grounds of unfairness existed before or during the recording of the caution interview.
    
20. Edmund Davies LJ in R v Prager ( 1972) 1 ALL ER 1114 has discussed the definition of " oppression" in an inclusive manner, where his Lordship held that;
    

The only reported judicial consideration of 'oppression' in the Judges' Rules of which we are aware is that of Sachs J in R v Priestley where he said:

'... to my mind, this word in the context of the principles under consideration imports something which tends to sap, and has sapped, that free will which must exist before a confession is voluntary ... Whether or not there is oppression in an individual case depends upon many elements. I am not going into all of them. They include such things as the length of time of any individual period of questioning, the length of time intervening between periods of questioning, whether the accused person has been given proper refreshment or not, and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid or an old man or somebody inexperienced in the ways of this world may turn out not to be oppressive when one finds that the accused person is of a tough character and an experienced man of the world.'

In an address to the Bentham Club in 1968d, Lord Mac Dermott described 'oppressive questioning' as—

'questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the suspect that his will crumbles and he speaks when otherwise he would have stayed silent.'

21. Bearing in mind the observation of Justice Gounder in State v Akanisi Panapasa (Supra), I draw my attention to Section 76 of the Police and Criminal Evidence Act 1984, which governs the admissibility of confessions in evidence in England, which states that;
    
    1. In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section,
       
    2. If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained
       
       1. By oppression of the person who made it,
          
       2. In consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,
          

The court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession was not obtained as aforesaid".

22. It appears that Section 76 of the Police and Criminal Evidence Act 1984 in England has a wider scope of existing circumstances than of the second component as enunciated in Shiu Charan (supra). Unlike in Shiu Charan, Section 76 (2) (b) has gone beyond the circumstances of unfairness to any existing circumstances which is likely to render the confession unreliable.
    
23. It appears that Section 13 and 14 of the Constitution have recognised and endorsed the main three objectives of the principle of rejection of an improperly obtained confession in evidence. Particularly, Section 13 (d) of the Constitution has specifically recognised the right against self-incrimination, where it states that;
    

"Not to be compelled to make any confession or admission that could be used in evidence against that person".

24. Section 14 ( k) of the Constitution states that;
    

"Not to have unlawfully obtained evidence adduced against him or her unless the interest of justice requires it to be admitted".

25. European Court of Human Right in G v United Kingdom ( supra) held that the determination of an admissibility of the confession is an exercise of judge's discretion. The ECHR held that;
    

"In examining the question of the voluntariness of the confession, the judge had also to consider the provision of the judges' rules relating to the conduct of questioning after arrest and prior to the placing of a criminal charge. Although a breach of these rules would not automatically result in the evidence in question being ruled out inadmissible. It would have required the judge to exercise discretion as to its admissibility".

26. Accordingly, it is a discretionary judicial decision to determine the voluntariness of the caution interview. The court is required to consider all the existing circumstances including the conduct of the parties in order to determine whether such circumstances and conduct has prejudicially affected the free will of the accused person in making his confession.
    
27. It is the burden on the prosecution to prove beyond reasonable doubt that the confession in the caution interview was made voluntarily and without the existence of any form of general unfairness (State v Rokotuiwai - [1996] FJHC 159; Hac0009r.95s (21 November 1996). This burden on the prosecution remains throughout the hearing.
    
28. Having discussed the scope, the nature and the applicable test of voluntariness of confession, I now draw my attention to this instant case.
    
29. In view of the grounds of voir dire, evidence adduced during the course of the hearing and the closing submissions of the parties, it appears that the main contentions of the accused person against the admission of his caution interview in evidence are founded on following grounds;
    
    1. The accused was arrested in breach of his constitutional rights, thus it is illegal,
       
    2. The accused was deprived of contacting his spouse and other family members,
       
    3. He was forced to take part in his caution interview in long and unsuitable hours. Furthermore, the caution interview was conducted in breach of his constitutional rights,
       
    4. The circumstances and the condition of his detention,
       
30. I.P.Aiyaz in his evidence stated that his team found the accused, when he was standing in the compound of his house. He went to the gate and introduced himself and asked the accused to come out. He then arrested the accused and explained him the reason for the arrest and cautioned him. I.P. Aiyaz specifically stated that they had sufficient grounds to reasonably suspect him for this offence of importation of illicit drugs in to the country.
    
31. On the contrary, the accused stated in his evidence that I.P. Aiyaz came and knocked on his door. When he came out, he was asked by I.P.Aiyaz to come downstairs. The accused said that he thought the stranger who came and knocked on his door would be a businessman as he was dressed smart and looked nice. The accused came down and followed him out of the gate. He was then pushed into the vehicle which was parked in front of his gate.
    
32. I am mindful of the fact that it is the onus of the prosecution to prove beyond reasonable doubt that the caution interview of the accused was obtained voluntarily without the existence of any circumstances that likely to render it unreliable. However, the court is allowed to consider the evidence adduced by the accused person in order to determine its reliability, reasonableness, in order to determine that it could create a reasonable doubt in the prosecution's case.
    
33. In view of the accused person's evidence, it appears that he believed the stranger who came and knocked on his door at 11 p.m. in the night is a businessman merely because he was dressed smart. Presuming that the person who appeared in front of his door at 11 p.m. to be a businessman merely because he was dressed smart and nice, could it possible for the accused to follow a stranger out of the home as he was requested to do so. It is improbable to accept the explanation of the accused person in respect of his arrest as reasonable. I accordingly do not accept his evidence in relation to the incident of arrest. Moreover, the evidence of the accused has not created any reasonable doubt in the prosecution's evidence on arrest.
    
34. I.P. Aiyaz and Cpl Epi specifically stated that they did not enter into the house of the accused but only found him in the compound of his house. Though the learned counsel of the accused person questioned I.P. Aiyaz about the accused person's wallet, the mobile phone and the car keys in his cross examination, I.P. Aiyaz did not state that they arrested the accused when he was returning home from work. I.P. Aiyaz and Cpl Epi only stated that they found the accused while he was standing in the compound.
    
35. The accused denied that he was given his constitutional rights at the time of the arrest. The learned counsel of the accused vigorously cross examined I.P. Aiyaz and Cpl Epi on this ground that the police did not give the accused his rights stipulated under Section 13 of the Constitution. Both I.P. Aiyaz and Cpl.Epi denied such allegation during their respective cross examinations. I.P. Aiyaz stated in his evidence that he explained the accused about the reason for his arrest and cautioned him according to the Judge's rules. He explicitly stated that they had sufficient and reasonable grounds to arrest him for the allegation of importation of illicit drugs.
    
36. The rights stipulated under Section 13 (1) (a), (b) and (c) of the Constitution are required to be given to the arrested or detained person promptly and not necessarily at the time of arrest. The determination of "promptness" stipulated under Section 13 of the Constitution depends on the circumstances of each case.
    
37. This is a complex investigation of importation of illicit drugs and the arrest was made at 11.p.m. in the night. Moreover, the prosecution wanted not to inform the wife of the accused of this arrest as they considered her as one of the suspects. He was explained the reasons for his arrest and cautioned under Judges' rules at the time of his arrest. He was then taken to the Nadi Police Station. The caution interview was commenced at 12.35 a.m. that was after one and half hours of his arrest. At the beginning of the caution interview the accused was explained and given his rights to consult a lawyer, and also to contact a representative of the Australian High Commission. He was cautioned and explained the nature of the allegation. I. P. Aiyaz explained in his evidence that he commenced the caution interview at that time of 12.35 a.m. because he wanted to give the accused his rights to counsel and other constitutional rights promptly after his arrest. Accordingly, it appears that the accused was promptly informed about the nature of the allegation, his rights to remain in silence and the consequence of not to remain in silence. His right to consult a lawyer and contact a representative of the Australian High Commission was also given before he was locked in the cell at the Nadi Police Station.
    
38. The learned counsel of the accused extensively cross- examined I.P. Aiyaz and Cpl Epi about their respective statement made during the course of the investigation. He tried to emphasise that their evidence were not in line with the statements they have made previously, which I find otherwise. The witnesses are not required to utter exactly the same thing in same word as they have given in their previous statements. I do not find any adverse contradiction of the evidence of the prosecution, specially the evidence of I.P. Aiyaz and Cpl Epi that goes to the root of credibility and reliability of the evidence presented by the prosecution. I accordingly accept the evidence of prosecution.
    
39. In view of the reasons discussed above, it is my opinion that the accused was legally and properly arrested and the constitutional rights stipulated under Section 13 (1) of the Constitution were properly and promptly given to the accused.
    
40. The accused alleges that he was not allowed to contact his wife or his family members after he was arrested on the night of 20th of December 2014. In contrast, the prosecution presented evidence that his family, specially his brother, Mr. Naveed had been in constant contact with IP Aiyaz and had visited the police while the accused was investigated.
    
41. IP Aiyaz in his evidence stated that he advised the accused that he could not allow him to contact his wife, as they considered her as a suspect of this matter at the time of his arrest. However, he asked the accused for any phone numbers of his other family members. The accused has replied him that he has bad memory in telephone numbers. Furthermore, the accused had told I.P. Aiyaz that he does not want to inform his father as he is old and sick. IP Aiyaz has called the brother of the accused in the morning of 21stof December 2014 and informed him about the arrest of the accused and his whereabouts. Furthermore, I.P. Aiyaz has advised the brother that he can contact Aiyaz, if needed on his mobile.
    
42. According to the evidence given by the prosecution, Mr. Naveed has visited the Sabeto Police Station around 12.00 noon on 21st of December 2014. It has been recorded in the station diary, which was tendered and marked as one of the prosecution's exhibits. The station orderly has referred him to I.P.Aiyaz and he then had met I.P.Aiyaz. IP Aiyaz stated in his evidence that he met and spoke to Naveed about the investigation. When the accused was told about the presence of Naveed, he has asked I.P.Aiyaz to ask him to bring some food. Naveed has then left and sent a text message to I.P.Aiyaz asking how he can deliver the food. At that time he received the text message, they were doing the search at the Lautoka Wharf. As it was a Sunday and outsiders were not allowed to enter into the Wharf, Aiyaz has asked Naveed to leave the food at Lautoka Police Station, which was later collected by Cpl Epi.
    
43. The accused met his wife and children at his home when he was taken to his house for the search in the night of 21st of December 2014. According to the evidence presented by the prosecution, he was allowed to spend some time privately with his family in his bedroom. He also had his shower and refreshment. Although, the accused alleges that he was not allowed to talk to his wife in private, as Cpl Nilesh was with him at all the time, he did not deny of having conversation with his wife, a shower and refreshment. Cpl Epi in his evidence stated that the brother, Naveed and a lady lawyer, who is a neighbour of the accused were also present at his home with his family when they went there for the search. The wife and the brother of the accused also accompanied them to the business yard of the accused. They were allowed to freely communicate with the accused.
    
44. Mr. Naveed and Mr. Pillay, the Solicitor of the accused visited the accused at Sabeto Police Station in the afternoon of 22ndof December 2014. Mr. Pillay made an entry in the station diary that he was kept waiting for an hour before he met his client and also the accused was forced to sign documents before he met the accused. IP Aiyaz and other police officers who gave evidence specifically stated that if someone wants to make a complain, he should have done it in the complaint registry. Entries in the station diary are not considered as complains. Mr. Pillay in his evidence stated that it was a general form of complaint entered in the station diary. However, he strongly stated in his evidence that he was forced to wait for some time before he was allowed to meet his client. IP Aiyaz in his evidence stated that he suspended the caution interview at 1.00 p.m. for lunch and went to Nadi. Upon his return he found that he had few visitors for meetings. They were officers from DPP office, Custom office and his superior officers, S.P. Abdul Khan and Divisional Crime officer Western Division. In the meantime, he found Mr. Naveed and his solicitor were also present at the police station. The arrival of all these visitors have been recorded in the station diary and tendered as prosecution exhibits. I.P. Aiyaz has informed the accused about the presence of his brother and the lawyer, but he had refused to meet them. Instead of that he had gone for prayers at the Administration office of the police station. The accused person's refusal to meet his brother and lawyer was confirmed by Cpl Epi in his evidence. However, the solicitor and the brother were allowed to meet the accused when the caution interview recommenced at 2.05 p.m.
    
45. A detained or an arrested person has a constitutional right to communicate in private with his solicitor pursuant to Section 13 (1) ( c) of the Constitution. However, that right should be exercised without hindering or disturbing the investigation that the police are legitimately entrusted with. Justice Shameem in Sate v Vasuitoga & Quari ( FHC Cr Case No HAC 08 of 2006) held that the court must be mindful of the legitimate rights of the police to question anyone in the course of proper investigation and in the public interest.
    
46. In this instant case, the main investigation officer I.P. Aiyaz had few meetings with the officers from DPP's office, Custom and senior police officers about this investigation, for which he suspended the caution interview. According to the prosecution, the brother and the solicitor had to wait until IP Aiyaz finished those meetings. Once the caution interview was recommenced, the solicitor and the brother were allowed to meet the accused, which is in my opinion does not infringe the accused person's rights enunciated under Section 13 (2) (c ) of the Constitution.
    
47. It appears that IP Aiyaz had been in constant communication with the brother of the accused. Mr. Naveed has visited the police station and met I.P. Aiyaz on 21st of December 2014. He then came and met the accused with his Solicitor on 22nd of December 2014. According to the station diary, the brother of the accused had again visited the police station and given the accused a bottle of juice in the evening of 22nd of December 2014. Apart from that, the accused met his wife and family when he was taken to his house during the search. IP Aiyaz stated in his evidence that the accused chose not to contact his lawyer or any family member at the commencement of the caution interview on 21st of December 2014 and informed him that he will tell the truth. The accused has stated that he does not want to involve any lawyer and acknowledged that his brother Naveed was informed by the police about his arrest when the caution interview was recommenced in the morning of 21stDecember 2014. When he was given his right to consult a lawyer or any family member, he has stated "not now", when the caution interview was recommenced on the 22nd of December 2014.
    
48. The accused denies that I.P. Aiyaz was in contact with his brother. The learned counsel of the accused vigorously questioned the prosecution witnesses, specially IP Aiyaz and Cpl Epi on this ground. However, I.P. Aiyaz and Cpl Epi continuously denied the allegations of the accused person and affirmatively stated his brother was in contact with I.P. Aiyaz and the accused was given his right to communicate with his family which he did not want to exercise during the caution interview. Apart from the extended cross examination, the accused did not call his brother Naveed to give evidence. I.P. Aiyaz stated that he found the correct mobile phone number of Naveed from the numbers given by the accused guessing one of them would be his brother's.
    
49. The accused did not deny that he was taken to his house and had his shower and refreshment, though he alleges that he was not allowed to talk to his wife in private. It appears that the Section 13 (2) (k) of the Constitution does not stipulate with an arrested person a right to communicate or talk to his family members in private as that of right to communicate with a lawyer in private under Section 13 (2) (c) of the Constitution. On the other hand, the wife of the accused was also considered as a suspect at the beginning of the investigation. Under such circumstances, it appears that the accused person had been given sufficient and reasonable opportunity to communicate with his family members. Furthermore, it is my opinion that the accused person was properly given his right to contact or consult a lawyer during the caution interview.
    
50. The accused person alleges that the caution interview was recorded in breach of his constitutional rights and judge's rules. In fact, the commencement of a caution interview at midnight is unacceptable unless the prosecution provided a justifiable and reasonable explanation. IP Aiyaz stated in his evidence that he wanted to caution the accused and formally put him the ground of the allegation for which he was arrested before he was locked in the cell. Apparently, it appears that the questions put to him in the early morning of 21stDecember 2014, are of administrative nature and explained him all his rights. He was not asked to answer any questions about the allegation. Furthermore, IP Aiyaz stated that he had a telephone directory and contacts of the Australian High Commission, if the accused chose to speak or contact a lawyer or the High Commission, which I find rather unrealistic at such a time of the day. However, I am satisfied with the explanation given by I.P. Aiyaz for commencing the caution interview at 12.35 a.m. in order to formally explain the accused his rights, procedures of the caution interview and nature of the allegation before he was locked in the cell.
    
51. It appears that the caution interview has recommenced at 10.49 p.m. on the 21st of December 2014. I.P. Aiyaz stated in his evidence that after conducting the search, he recommenced the caution interview in order to confirm the matters relating to the search as it was fresh in mind of the accused.
    
52. I find that the caution interview was recommenced at 9.45 a.m. and at 10.10 a.m. in the mornings of 21st and 22ndof December 2014 respectively. This has given the accused sufficient time to rest in the night. He was given breaks and meals during the time of the caution interview. His rights and cautions were given at the beginning of each day. He was reminded of them at every recommencement after each break. It is not required to repeat all the rights and cautions at the reconstruction or recommencement after each break but reminding of them would suffice. It appears from the evidence presented by the prosecution that the accused had meals not only from the meals provided for suspects, but he was given food prepared for the investigation officers and also food brought by his brother. The investigation officers have given the accused sufficient facilities and opportunities for his prayers at relevant times.
    
53. Subsequent to the caution interview, the accused was formally charged at the Sabeto Police Station. It was commenced at 9.41p.m. on the 22nd of December 2014. Cpl Emosi Rotukana has formally charged the accused. The accused was given his rights and was cautioned him by the charging officer. The accused has contacted his brother Naveed on his mobile and spoke to him at the commencement of the charging. The accused has then told the charging officer that his brother was arranging a lawyer and he could continue with the charging.
    
54. In contrast, the accused denies that he was given meals and any of his constitutional rights during the caution interview. He did not mention in his evidence that he told about these infringements of his rights to his family when he visited them on the 21st of December 2014. Even at the first opportunity he had to consult a lawyer as he claimed in the afternoon of 22nd of December 2014, he has not complained to Mr. Pillay about such refusal of his meals and infringements of his rights. Mr. Pillay only recorded in the station diary that he was asked to wait for an hour before he met his client and the accused was asked to sign some documents before the accused met him. He has not mentioned any other allegations in his entry in the station diary. Moreover, when Mr. Pillay was asked by the learned counsel of the accused that "did he make any complaints against police to you", replied "No, his general tone was that he was scared and the police officers were talking to him about what they can do to his family". Mr. Pillay further explained that it was only about his wife, he was concerned. IP Aiyaz denied such allegations, but admitted that the accused was informed that his wife was also considered as a suspect when he was arrested. The investigation team wanted not to inform his wife about his arrest at that time as they were concerned about any possibilities of destruction of evidence if she was informed.
    
55. Mr. Pillay has alleged that the accused was forced to sign documents before he met his lawyer. He stated in his evidence that he saw IP Aiyaz having the paper and turning it towards to the accused and had indicated the place to sign. At that point he intervened to stop it and shouted from the reception area. However, the accused in his evidence stated a rather contrasting version. He stated that IP Aiyaz put all the papers of the caution interview in front of him like a pack of cards and forced him to sign.
    
56. The learned counsel of the accused extensively cross- examined Cpl Epi about his presence at the conclusion of the caution interview. Cpl Epi was the witnessing officer for the second accused as well. His caution interview was also commenced when the caution interview of the first accused was reaching to its conclusion. Cpl Epi explained in evidence that the investigation team had only four officers. Cpl Amani was their designated driver and I.P. Aiyaz was conducting the caution interview of the accused. Therefore, he was the only available officer to be the witnessing officer for the caution interview of the second accused at that time. Accordingly, he went to the caution interview of the second accused person when it commenced at the same bure of the police station, where the caution interview of the first accused was conducted. At that time the first accused was reading the typed pages of caution interview. Having considered the explanation given by Cpl Epi, I do not find that his absence at the conclusion of the caution interview of the first accused render it unreliable.
    
57. The accused did not deny that he was not handcuffed and was kept at the bure of the police station all the time except in the night for himto rest. He was only kept in the police cell to rest in the night. The accused stated in his evidence that the condition of the cell in Nadi Police Station and Sabeto Police Station were degrading and inhuman. However, Sgt Savita and the Officer in charge of Sabeto police station stated in their respective evidence, that the cells were provided with clean mattress, pillows and blankets. In view of the station diary of the Nadi Police Station, the accused was not sleeping when he was checked by the police officer in the early morning hours. However, Sgt Savita pointed out that the other suspect who was with the accused in the cell had no issue and slept well. According to the station diary of the Sabeto Police Station, it appears that the accused had no problems with his sleepin the night of 21st of December 2014.
    
58. The accused were not handcuffed and always kept in the bure of the police station, even at time he was not questioned. He was provided with opportunities and a place for his prayers. According to the caution interview and the station diary, he was kept in the cell only for himto rest in the night. He was given his meals and also his brother was allowed to bring him meals. The accused was also allowed to have meals with the police when they were served with their meals. In view of these facts, I find the accused was treated with dignity, and had been provided with all possible facilities available at the Police Station during the caution interview. Even the condition of the cell has caused him discomfort, as I am mindful that the notion of comfort is a relative preposition and depends on the background of the person concerned, I do not find that it has caused any prejudice to the accused during his caution interview.
    
59. Having considered the nature of the evidence presented by the defence, I do not find that they have created any reasonable doubt in the prosecution evidence. Bearing in mind the onus of the prosecution to prove everything beyond reasonable doubt, I accept the evidence of the prosecution. I am satisfied that the accused was given his rights, sufficient breaks and treated with dignity during the caution interview and the charging.
    
60. Having considered the reasons set out above, it is my opinion that the caution interview and the charging statement of the accused person had been obtained voluntarily and without the existence of any circumstances which likely to render it unreliable. I accordingly hold the caution interview and the charging statement of the accused person is admissible in evidence.
    

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
27th of July 2015

Solicitors : Messrs Iqbal Khan & Associates for First Accused,
AmanRavindra- Singh Lawyers for Second Accused,
Office of the Director of Public Prosecutions