State v Nandan - Voir Dire Ruling - Admissibility of Confessions [2016] FJHC 125; HAC031.2012 (11 February 2016)

IN THE HIGH COURT OF FIJI
AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC. 031 of 2012

STATE

V

ARNOLD VILASH NANDAN
VIMLESH CHAND

Counsel : Mr. S. Vodokisolomone & Ms. U. Tamanikayaroi for the State
Ms. L. Lagilevu and Mr. E. Radio for 1st Accused
Ms. S. Vaniqi for 2nd Accused

Dates of Hearing : 02 February - 09 February 2016
Date of Ruling : 11 February 2016

VOIR DIRE RULING – ADMISSIBLITY OF CONFESSIONS

1. Each Accused is charged with one count of unlawful possession of illicit drugs contrary to section 5(a) of the Illicit Drugs Control Act No.9 of 2004.
   
2. The State seeks to tender the cautioned interview statements obtained from the Accused persons as evidence in this trial.
   
3. The 1st Accused is challenging the cautioned interview tendered as VDPE1 statement based on the following grounds;
   
   1. Threats.
   2. Deceptive conduct.
   100. The caution was not fully understood and given in a misleading manner.
   4. Right to legal counsel was totally denied.
      

In the document dated 17th April 2013 filed on behalf of the 1st Accused, it is further stated that;

"We wish to raise the grounds in which we are challenging the cautioned interview recorded by the police and admission or confession of the accused in this case given that the life threatening circumstances and conduct of the interview renders the whole interview and confession totally unfair and must not be admitted by this Honourable Court."

4. The 2nd Accused is challenging the cautioned interview statement tendered as VDPE2 based on the following grounds;
   

1. Firstly, the entire contents of the caution interview are prejudicial as the contents were obtained through improper practice such as the threat of force, actual use of force and/or actions designed to embarrass and degrade our client from the point of arrest at Shalimar Street, Samabula.

2. Secondly, our Client alleges that the circumstance of arrest, interview and charge makes out a more general ground of unfairness and that ground existed in the way in which the police behaved by breaching of the Judges Rules falling short of overhearing the will, by trickery or by unfair treatment.

3. The following specific grounds are alleged:

(i) That the Accused was manhandled, sworn at, verbally degraded and assaulted by police who, unknown to the Accused, came to arrest him; and

(ii) That the police would not permit to have his next of kin, friend and even his lawyer to come and see him on the 13th – 16th of December 2012; and

(iii) That during the interview, the Accused was subjected to assault by police officers (name unknown to the Accused) in the form of slaps on his face at times when he wants to deny and explain to the police of his innocence; and

(iv) That he was verbally abused with undignified words of hatred and violence that prejudiced his right to be treated fairly under the judge's rules and due process of law; and

(v) That he was subjected to long questions that prejudiced his rights to understand the allegations properly; and

(vi) That he had monies seized from him and withdrawn from his ATM Card by police officers who held our promises that if he does that, he will be absolved from prosecution.

(viii) No signature of the Accused was ever recorded on each page of the caution interview which brings the question of credence to the entire interview process.

4. He was not seen by a Justice of Peace or by any visiting member of the family during the interview period; and

5. The answers to the Statements were forced by the officers responsible for recording the statements and they are untrue to the best of the Accused's knowledge.

5. In Ganga Ram and Shiu Charan v. R (1983), the Fiji Court of Appeal outlined the two grounds to be considered for the exclusion of a confession as follows;
   

"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 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. Ping Lin [1976] AC 574.

Secondly, even if such voluntariness is established there is also a 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 will, by trickery or by unfair treatment. R v. Sang [1979] UKHL 3; [1980] AC 402, 436 at C-E. This is a matter of overriding discretion and one cannot specifically categorise the matters which might be taken into account". [Emphasis added]

6. Accordingly, in order for a confession made to a police officer to be admissible as evidence against the accused that made the confession, the confession should have been made with that accused's own freewill with full appreciation of the legal consequences. If a confession is made as a result of oppression or if it is obtained in an unfair manner, such confession is not admissible and should be excluded.
   
7. The purpose of this voir dire is to determine whether the two cautioned interview statements of 1st Accused and the 2nd Accused tendered as VDPE1 and VDPE2 respectively, should be excluded on the basis that they were not given voluntarily or on the basis that they were obtained under unfair circumstances. The prosecution should prove the voluntariness of a challenged confession beyond reasonable doubt. However, the prosecution is not required to adduce evidence beyond the scope of the grounds of objection provided by the Defence. This is because those grounds ought to form the reason or reasons that compelled or motivated the accused to make the admissions recorded in a cautioned interview statement. Those grounds would define the boundaries within which the prosecution should present the case to establish voluntariness.
   
8. It is pertinent to note that, whether the Police fabricated a particular cautioned interview statement or whether or not an accused made the confession in a cautioned interview statement cannot be determined in a voir dire. This position was expressly pronounced by the Court of Appeal in the case of Ro Olivini Radininausori v State (AAU 105 of 2007 decided on 26th November 2010) in the following terms;
   

"Obviously, not every objection taken to an interview or statement made under caution is the issue of voluntariness. There could be claims of fabrication, errors in transcription, denial of rights to a suspect etc. In such situations such as these it is not necessary for a voir dire to be held to determine the admissibility of the document; the issue becomes a matter for the jury (assessors)"

9. The following excerpt found in the case of Guston Frederick Kean v State ([2013] FJCA 117 decided on 13th November 2013) further clarifies the point;
   

"[25] The Appellant claimed that whilst at the Samabula Police Station he was denied meals, proper sleeping facility, toilet facilities and drinking water. He also claimed to have been assaulted. However the Appellant is not really challenging the admissibility of the caution interview on the basis of whether it was made voluntarily, because at paragraph 31.0 on page 7 of his submissions, the following appears:

"It is submitted that although I was assaulted, threatened and subjected to oppressive treatment as above summarised, I nevertheless did not make those statements and I did not sign those photocopy interviews. Police fabricated those statements and fraud (perhaps should read forged) these signatures."

[26] It is apparent that the issue raised by this paragraph is not so much whether the caution statement was made voluntarily but rather the Appellant is claiming that he never made the caution interview admissions and that his signature had been forged.

.......

[27] Although on the one hand the issue whether the caution interview admissions were made voluntarily was a question of law for the judge at the voir dire stage whilst the authenticity of the interview was a question of fact for the assessors to be decided after all the evidence has been heard, ..."

10. Now I turn to examine the facts of this case.
    
11. The Prosecution led the evidence of 8 witnesses. Former Police Officer Manoa Kalouniviti arrested the 1st Accused on 13th December 2011, interviewed 1st Accused under caution and also took part in the search conducted at 1st Accused's flat at 67, Shalimar Street. Former Police Officer Sailasa Turagaluvu was the interviewing officer for 2nd Accused. DC 2819 Lasarusa Batibalavu was the witnessing officer of the 2nd Accused's cautioned interview and was also the charging officer of the 1st Accused. D/Corporal Filipe Puamau arrested the 2nd Accused. DC 3331 Joeli Rokotuiwailevu was present at the scene where the 2nd Accused was arrested. Corporal 2547 Manueli Yawayawa was part of the team that conducted a search at 67, Shalimar Street. Corporal 2506 Tevita Ketedromo formally charged the 2nd Accused. D/ Corporal Basilio Vevewa also took part in the search conducted at 67, Shalimar Street.
    
12. The witnesses said that the two accused persons were not assaulted and they were not sworn at during their arrest, before they were interviewed under caution, or during their interviews. According to the evidence of the prosecution witnesses, there was no oppression and the interviews were not recorded under unfair circumstances.
    
13. The 1st Accused said in evidence that he was assaulted by the Police before and during the cautioned interview and the Police officers swore at him. He also said that the interviewing officer asked for money and promised to release him in return. He said as a result of that promise he paid money to the interviewing officer. He never said he confessed as a result of that promise.
    
14. 1st Accused also said in his evidence that he merely signed when he was asked by the interviewing officer to sign, but both the questions and answers in the cautioned interview statement were given by the interviewing officer. Accordingly his position is that he never confessed and the cautioned interview which the prosecution seeks to tender in evidence as VDPE1 is not his.
    
15. In his evidence, the 2nd Accused said that he was assaulted by the Police Officers and the Police Officers swore at him before and during the cautioned interview. He said he was not allowed by the Police to consult a lawyer or to meet his relatives. However, he also said that he did not give the answers recorded in VDPE2 and he never signed that document. Accordingly, his position was also that VDPE2 is not his cautioned interview.
16. Accordingly, though the grounds of objection filed on behalf of both accused persons are based on the proposition that the confessions were obtained by oppression and in an unfair manner, during the voir dire, they took a different stance stating that they never made the respective confessions.
    
17. In the circumstances, I hold that there is no issue relating to voluntariness to be determined in respect of VDPE1 and VDPE2 at this stage. The question whether those statements were made by the relevant Accused persons is for the assessors to decide first, after they hear all the evidence in this case.
    
18. I so order.
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Office of the Legal Aid Commission, Suva.