State v Singh [2022] FJHC 202; HAC170.2020 (28 April 2022)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 170 OF 2020

STATE

V

PRANIL ALVIN SINGH

Counsel: Mr E Samisoni for the State

Mr J Reddy with Ms K Dugan for the Accused

Date of Hearing: 25 & 26 April 2022
Date of Ruling: 28 April 2022

RULING

[1] Following his arrest on 6 June 2020, the Accused allegedly made the following admission in his charge statement recorded on 7 June 2020 by PC Himanshu Sharma:

‘I wish to state that yes I have set fire to the house. I was not able to think straight because I was under a lot of pressure and I admit that I have made a mistake by setting my house on fire but I did not try to murder my two boys.’

[2] The prosecution relies upon the said admission to prove the charges of arson and attempted murder against the Accused.

[3] The defence objects to the admissibility of the charge statement on the following grounds:

1. That the right to remain silent and the consequences of not remaining silent were not explain to the accused at the time of arrest in a language he understands.
   
2. That the arresting officer namely PC 5583 Waisake who was the arresting officer, treated the Accused in a manner that scared him and made him fear for his physical well-being.
   

100. That during the whole interview process and the Charge Statement, the Accused was treated in a manner that put him under a lot of stress and pressure.
     

4. That during the Charge Statement PC 5926 Himanshu Sharma did not caution the Accused on his right to remain silent and the consequences of the right to remain silent.
   
5. That the Accused has been greatly prejudiced by the Breach of his rights and we submit that the Charge Statement of Mr Pranil Alvin Singh ought not to be admitted as evidence at trial as it will be unfair and prejudicial to the accused and the accused must be given a fair trial.
   

[4] The question of admissibility of evidence is a question of law for the trial judge. It is trite law that for a confession made to a person in authority to be admissible in evidence the prosecution must satisfy that the confession was given by the accused freely, without fear of prejudice or hope of advantage. Even if such voluntariness is established there is a residual discretion to exclude the confession on a ground of unfairness.

[5] The Fiji Court of Appeal in Ganga Ram and Shiu Charan v R 1983 (unreported) outlthe tthe two-part test for the exclusion of confessions at p.8:

"it will be l be remembered that there are two matters each of which requires cerati this area. FirstFirst, it must be established affirmativeltively 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 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 Sang [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] The burden of proving voluntariness, fairness, lack of oppression, compliance with the Constitution, where applicable, and (if there is non-compliance) lack of prejudice to the suspect, rests at all times with the prosecution. They must prove these matters beyond reasonable doubt.

[7] The admitted facts are.

PC 5583 Waisake arrested Pravin Alvin Singh on 6 June, 2020 at Robertson Road, Suva and escorted him to Valelevu Police Station.

Pranil Alvin Singh was interviewed under caution on 6 June, 2020 in the English Language at the Valelevu Police Station by DC 5165 Koshal Dutt and witnessed by DC 4900 Amrit Lal.

Pranil Alvin Singh was formally charged by the police with one count of Arson and two counts of Attempted Murder on 7 June, 2020 in the English Language by PC 5926 Himanshu Sharma and was witnessed by PC 6149 Steveniel Anthony at Valelevu Police Station.

[8] The prosecution led evidence from three police officers.

[9] PC Waisake’s evidence is that when he arrested the Accused he cautioned him of his right to silence and in response the Accused nodded his head, but did not say anything else. He then escorted the Accused to Valelevu Police Station and handed him over to the charge room personnel. The officer said that nobody threatened or put pressure on the Accused before, during or after his arrest. Under cross examination the officer denied ‘elbowing’ the Accused inside the vehicle following his arrest.

[10] DC Dutt accompanied PC Waisake to arrest the Accused. DC Dutt’s evidence is that he accompanied the arrest team, but it was PC Waisake who effected the arrest. After the Accused was brought to Valelevu Police Station DC Dutt interviewed him under caution. DC Dutt said that he did not at any time during or before or after the interview forced or put pressure on the Accused to give any statement or answers. However, the record of caution interview is not be being relied upon by the prosecution.

[11] The admission relied upon by the prosecution is contained in the charge statement of the Accused recorded by PC Sharma. PC Sharma’s evidence is that he recorded the statement using a computer after cautioning and administering him of his rights. PC Sharma said that the Accused voluntarily gave his statement and that he did not complain to him about any mistreatment by PC Waisake and DC Dutt. He said that he or the witnessing officer did not put any pressure on the Accused to make a statement.

[12] The Accused’s evidence is that when DC Waisake arrested him he shouted at him and called him to come out of his house. He then handcuffed him and took him to the vehicle. He said that PC Waisake threw him inside the vehicle and threatened him (you kaidia watch out). The Accused sat behind the passenger seat and PC Waisake sat behind the driver. The Accused said that DC Waisake elbowed him on the right side while they were in the vehicle.

[13] The Accused said that he was kept at the station until in the morning when he requested the police to take him to the hospital because the area where he was elbowed was paining. It is not in dispute that the Accused was medically examined before the commencement of his caution interview. The medical report has noted abrasions on the right rib area of the Accused.

[14] The Accused said that before the interview commenced he spoke to a lawyer who had advised him of his right to silence. The Accused said when DC Dutt commenced the interview, he threatened him by banging on the table and saying that if he don’t make any statement the officer standing behind him will assault him.

[15] The Accused said that when PC Sharma took his charge statement, he threatened him saying that if he don’t sign the paper he will be assaulted like the children who were being beaten inside the bure. He said that he signed the paper without knowing the contents because he was frightened of the police officers.

[16] It is clear that even if I accept that the police officers did not advise the Accused of his right to silence, the Accused knew that he had a right to silence and that he was not obliged to make a statement incriminating himself to the allegations against him. His evidence is that before his interview commenced he spoke to a lawyer who had advised him of his rights. His evidence is that despite the assault, threats and intimidation he did not make the alleged admission contained in the charge statement. His evidence is that he signed a pre-prepared document without knowing the contents.

[17] If the Accused’s evidence is or may be true, then he is suggesting that the police have fabricated the admission and that he placed his signature on a fabricated statement out of fear of police. In his evidence the Accused has not suggested that his admission was obtained using threats. His evidence is that his signature was obtained using threats.

[18] If threats were indeed made by the police officers to get the Accused to sign a fabricated admission, then the court has discretion to exclude the evidence on the ground of unfairness to the Accused. The Accused’s evidence is that the intimidation by police commenced at the time of his arrest and continued until his charge statement was recorded. While he was in police custody he complained of pain on the right side of his body where he was elbowed. There is a medical finding of injuries on the right rib area. The prosecution has led no evidence to prove those injuries existed before the Accused was arrested on 6 June 2020. It is plausible that the Accused sustained the rib injuries following his arrest on 6 June 2020. It is plausible that the Accused was forced to sign a fabricated admission. The Accused spoke to a lawyer before being interviewed and that he knew that he had a right to remain silent. Why would he make an incriminating statement right towards the end of the interrogation process when he knew that he had a right to silence?

[19] I am not sure whether the admission of the Accused was fairly obtained by the police.

[20] For these reasons, I exercise my discretion to exclude the charge statement of the Accused on the ground of unfairness.

. ...........................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Jiten Reddy Lawyers for the Accused