State v Prakash [2001] FJLawRp 93; [2001] 2 FLR 366 (31 October 2001)

STATE v DEO PRAKASH

High Court Criminal Jurisdiction
24, 25, 29, 31 October, 2001 HAC 014/00L

admissibility – Caution statement – general allegations of assaults – deprivation of sleep – interview and reconstruction conducted late at night - whether obtained fairly and without oppression – test of admissibility - whether wife's inculpatory statements about the accused amounted to improper pressure - Right to counsel – Judges' Rules principle (c), (e); 1997 Constitution ss23(1)(e), 25(1) and 27(1)(a), (c) and (f); Criminal Procedure Code s192

The accused challenged the admissibility of his caution interview, conducted in hindustani, alleging that police assaulted him by fists, kicking, use of police baton and putting chillies all over his private parts. Police notes recorded the accused as normal. The medical report was unhelpful. The accused alleged he was tired and wanted to sleep. PW2 gave evidence that he recorded in his note book that he asked the accused whether he wanted to sleep and the accused said it was OK. However, the note book was not produced to the Court. On the day of the caution interview, the accused was detained from 11am, the caution interview commencing at 8pm. According to police version of events, at the completion of the accused's wife's interview there would have been sufficient evidence to charge the accused in compliance with principle (d) of the Judges' Rules. The Court found there was no clear or satisfactory explanation given why the accused was later interviewed under caution at night, taken on a reconstruction of the scene from 8pm to 2.35am, and charged 5 hours after the time when there was sufficient evidence to so charge the accused. The accused may have been of physically tough character for a cane cutter by day, but the Court's observation was that his hindi was uncouth and unsophisticated, and he may not be used to be interviewed at night under caution.

Held–(1) The test is whether it is right and fair that a caution interview can be admitted. Cumulative breaches of the Accused's right to meet his spouse, he was not informed of his right to a lawyer, no risk of destruction of evidence, prolonged detention for two days and nights, late night interview and reconstruction of scene, deprivation of sleep, intimation by police and an unexplained five hour interval between interview and charge, and failure of the interviewing police officer to ask accused about veracity of earlier statement, results in a finding that obtaining of the confessional statements were unfair and oppressive. They are ruled inadmissible.

(2) Accused's wife's inculpatory statements about the accused could amount to pressure where the wife was in police custody for about five hours before she communicated with her husband. It does not meet the standards of Constitution s27(1)(f). Police presence during meeting suggests intimidation as there is no requirement for police presence during a meeting between spouses; neither was the spouse treated with humanity and respect for inherent dignity. There was sufficient material from the wife's interview to put allegations to the accused under caution.

(3) Police cannot continue to adopt practices which the courts have stated to be improper. The Court's role is not to punish police for failure to observe codes of practice, but in the new regime of human rights the Court must balance individual rights of the accused and the general welfare of the community. The cumulative breaches by the police amounted to serious undermining of the Accused's rights.

The prosecution has not convinced the court beyond reasonable doubt that the accused caution interview notes and charge statements were voluntarily made. Caution interview ruled inadmissible.

Cases referred to in Ruling
D.P.P. v Ping Lin [1975] All ER 175
Director of Public Prosecutions v Epi Nabua & Ors HAC 3/92
Kuar Singh v State AAU0001/92
R v Delany (1989) 88 Cr. App.R. 388
R v Goodwin (1993) 2 NZLR 153
R v Watson 51 Cr.App.R. 1
State v Mool Chand [1999] HAC 3/99B 22 November 1999
State v Ram Lingam [2001] HAC 010/00S 13 June 2001
State v Raymond Sikeli Singh & 3 Ors HAC007/99L per Townsley, J
Sudesh Jeet v State (2001) 1 AAU0036/99S
Wong Kam-ming v The Queen [1980] AC 247

Kevueli Tunidau & Josaia Waqaivolavola for the State
Iqbal Khan & F. Koya for the Defendant

31 October, 2001 RULING

Prakash, J
This case was set the trial on 24/l0/01. Certain evidence had been agreed between the parties under Section 92 of the Criminal Procedure Code. On 24/10/01 by consent of the parties the case commenced with a trial-within-a trial. The State called 13 Police Officers to give evidence. The accused made a dock statement.

The objections to the admissibility of the accused caution interview to the Police on 6/08/99 and 7/08/99 is based on the following grounds:

(a) That the statements were obtained in circumstances that were unfair to the accused;

(b) The accused was systematically softened to the interview in that he was kept in custody in circumstances which was degrading and inhumane and who was unjustly handcuffed from the time he was picked up until his interview;

(c) That the statements were obtained in circumstances that were oppressive;

(d) That the statements were obtained in breach of Rule 2 and 4 of the Judges' Rules; and

(e) That the statements were obtained in breach of section 23(1)(e), 25(1) and 27(l)(a)(c) and (t) of the Constitution;

(f) The accused was assaulted by several Police Officers as a result the accused made confessional statements.

The State case centred its submission on the conduct of the caution statement. It is not necessary for the purpose of this ruling to restate the evidence and cross-examination of each Police Officer. These are recorded in the evidence of the Court. At the outset it must be stated that the Court has to be convinced beyond reasonable doubt that the accused caution statement was voluntarily made. It is for the Prosecution to establish beyond reasonable doubt that the confessions were voluntary (D.P.P. v Ping Lin [1975] All ER 175 and Wong Kam-ming v The Queen [1980] AC 247).

The preamble to Judges' Rules sets out the basic principles for the admissibility of any statement made by the accused to the Police.

Principle (e) states:

"That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear or prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression."

The word oppression implies something which "tends to sap and has sapped that free will which must exist before a confession is voluntary" (State v Mool Chand Lal, Labasa High Court 22/11/99 p.7 - Trial within trial ruling).

At the outset the Court notes that the allegations of assaults were made in rather general terms against almost all the Police officers who dealt with the accused while he was in detention. Allegations were of assault by fists or kicking or by the police baton and the putting of chilies all over the private parts. It was not clear from the accused dock statement which Police officers were actually involved in the assaults in terms of specific details. The use of the term "assault" has been as general as the term "normal" when used by Police officers describing the accused condition at various stages of detention. The Medical Report (Exh 5) falls in the same trap. On the examination section it states: "no obvious injury detected on all over the body of the patient" The Medical Officer's Report in Part A describes the brief circumstances of the incident according to the patient as: "Victim alleged at Tavua MC today 9/8/99 — that he was assaulted by the Police." It is apparent the "circumstances of the incident" was filled by the Police, not described by the accused. In Part B section 12 requires the History of the patient to be recorded. This simply states: "As stated on part (A)." Further, in section 13 Examination of Patient (a) Mental State, it is stated "Calm. He was seen with handcuff on both wrists." It is quite clear that this was a professionally shoddy examination. How can a patient be fully examined with handcuffs on? Without a history related by a patient how can a doctor fully examine a patient? Did he undress the patient to look at the private parts? What was the nature of assaults the doctor was examining?

In this regard a perusal of the Rakiraki Magistrates' Court file is useful. The accused first appeared in Court on 9/8/99. His then Counsel Mr. Singh is recorded to have stated: "Accused assaulted whilst in custody. Ask if accused could be medically examined. Request that he is not examined in Tavua as Police Officers from Tavua are involved." On his second appearance on 23/8/99 his counsel Mr. Shankar stated, inter alia, "I am not accepting accuracy of medical report served." The learned Magistrate had stated: "In view of the fact that Tavua Hospital has no proper medical facilities for examination of heart problems and related chest pain alleged to be caused by the assault I order that the accused be taken to Lautoka Hospital for another examination of the alleged chest pain." On 6/9/99 further requests were made for medical examination for the alleged assault. No reports were forthcoming apart from that tendered as Exhibit 5. The Court, therefore, remains in considerable doubt as to the nature of assaults alleged. In view of the Medical Report tendered the Court is not convinced beyond reasonable doubt that no assaults took place.

Learned State Counsel in his written submissions has adequately dealt with the conduct of the caution interview itself. He has outlined the phases of the conduct of the interview. The interview commenced at 8pm on the night of Friday 6/08/99. It concluded at 2.35am on the morning of Saturday 7/08/99. In between there was a reconstruction of the scene between 12.25am to 1.00am. The total time for the conduct of the interview was 6 hours and 40 minutes. The summary breakdown of the 6 hours and 40 minutes, as provided by the state is:

i) Total duration of recorded interview questions and answers = 3 hours and 30 minutes

ii) Total duration of breaks for accused to relieve himself, rest, have dinner and water refreshments = 1 hour 45 minutes

iii) Total duration caution statement read over to accused at completion of interview = 40 minutes

iv) Total travelling time to and from Rakiraki Police Station and crime scene during scene reconstruction = 35 minutes

The Court has no difficulties with the format of the interviews and the length. However, the actual conduct of the interview cannot be considered in isolation. In this case, according to the evidence of (PW11) the accused and his wife were brought to the Police Station at about 10:40am. They were kept separately. According to (PW11) the wife was interviewed for 1 hour, between 2.00 to 3.00. After the interview she requested to see her husband, the accused. According to (PW11) and (PW12) she had stated that she was involved with love affairs with deceased. On 1/8/99 she was washing dishes when deceased came to see her. Accused was inside. While talking she was startled. Deceased saw accused and ran. She saw accused running after deceased with cane knife. After sometime accused returned.

She saw blood on cane knife and his body and shorts. She said accused told her that he had killed deceased and everything was over she was warned by husband to forget about everything. Told to keep quiet." She was shown the knife. She cried and made a request to see her husband. According to Police the wife told the accused that "she had told the Police everything about him killing the deceased. He should tell the truth about what happened." According to the Police the accused appeared quite normal when this meeting took place between the accused and his wife. This happened in front of three Police Officers. The accused's caution interview commenced at 8.00, some five hours later.

Prior to the 6/8/99 the accused was brought to the Police station on 3/8/99 and released on 4/8/99. He had himself come to the Police Station on 2/8/99 and reported the death of the deceased. He made a plain statement to the Police which was recorded by DC 1840 Chin Sand (PW2). (PW2) formally charge the accused under caution on 6/8/99. (PW2) did not seek any explanation as to why the accused was admitting he committed the offence when he did not say so in his plain statement recorded by (PW2) on 2/8/99. There is no legal requirement to do so. None the less he was the Police Officer who got the accused to sign a declaration that: "This statement ... is true to the best of my knowledge and belief and I make it knowing that if it tendered in evidence, I shall be liable to prosecution if I have willfully stated in it anything which I know to be false or do not believe to be true." Wouldn't it be sensible to ask him about his earlier statement. He was now making a full admission. This would have avoided any allegations of pressure by those who interviewed him earlier. It would also indicate fairness by (PW2) in his dealings with the accused. (PW2) also stated that when accused was brought to him about 2.45am he looked O.K. He stated that: "I asked him whether he wanted to sleep and he said it was O.K." He recorded these conversations in his note book.
However, he did not have his note book with him. This is clearly unsatisfactory given that Defence alleged that at that time the accused was very tired and wanted to sleep. This goes to the fairness of the conduct of the interview at that time of the night.

It was clear from the evidence whether accused was brought to the Police Station on 5/8/99 or whether Police visited his house on that day as part of their investigation. It is not clear when the clothes and other items shown to the accused during the caution interview were seized. According to inspector Saimoni Ratu (PW10) the cane knife (Exh. 4) was seized from the accused house on 4/8/99. In the absence of the Investigating Officer perhaps the issue remains unclear. On the day of the caution interview, that is, 6/8/99 the Accused was on detention from about 11.00am. His caution interview commenced at 8.00pm. In itself such a period of detention prior to interview cannot be considered to be in breach of the constitutional provisions nor in breach of the Judges' Rules. Under Section 27(3)(b) of the Constitution he should have been brought before a Court no later than 43 hours after the time of arrest. In this case the 48 hours would have expired on Sunday 8/8/9. As such his presentation before the Tavua Magistrates' Court on 9/8/99 was within the requirement of Section 27(3)(b). However, the Court is concerned as to why there was a need to interview the accused on the night of 6/8/99 commencing from 8pm to around 3.00am the next morning.

The Hon. Chief Justice has stated: "It always defies understanding why the police at times elected to interview suspects at very late hours — in this case after midnight." (Cr. Case No. 3/92 Director of Public Prosecutions v Epi Nabua & 3 Ors). In this case no satisfactory explanations are provided as to why the caution interview commenced at 8.00pm at night. The reconstruction of the scene at about 12.00 midnight is more unexplainable. The mere assertion that since the offence was committed at night the reconstruction was conducted at night is not a plausible explanation. There is no independent evidence that the offence was committed at midnight. The Police cannot continue to adopt practices which the Courts have 'stated to be not proper. According to the Police's own version of events, by the completion of the accused wife's interview they would have had sufficient evidence to charge the accused in compliance with Judges' Rule (d). The delay of about 5 hours has not been explained. No clear explanations are evident as to what happened to the accused during these 5 hours.

In the case of Mool Chand Lal, referred to earlier, the interview of the suspect Moo1 "commenced at 2255 hours. At 2330 hours the interview was suspended for the night to allow accused and interviewing officers to rest for the night. The caution interview of accused recommenced at 0540 hrs" (p3) As such there is no strict requirement that an interview has to be conducted unbroken past midnight. In this case an allegation of oppression would have been removed if the accused was given a proper rest at night, as is alleged he wanted. The interview and the reconstruction of the scene could have been done adequately the whole of Saturday 7/8/99.

The Court now turns to the meeting or confrontation between the accused and his wife in the Police Station. This was after the wife was interviewed. According to the Police she requested such a meeting. What she is alleged to have admitted in her interview and what she said to the accused is strictly hearsay. However, we are not concerned about the truth of any statements made. We need to consider it in the context in which the state has alleged such statements were made. It is not clear on what basis the wife was interviewed. It is apparent that a plain statement was recorded from her on 4/8/99. In any case, she was brought to the Station along with her accused husband on 6/8/99. They were kept apart. The Court will never know under what circumstances she was interviewed. She was not a compellable witness for the Prosecution. The context in which she made the alleged statement that "she had told the Police everything about him killing the deceased. He should tell the truth about what happened" is not clear. The Court accepts that she was not a person in authority. She was the accused spouse. Like the Police, or any other person, she could ask the accused to tell the truth.

In normal circumstances and in view of Section 27(1)(d) of the Constitution any visit or communication between the accused and his wife would be a plus for the Police. However in this case she did not come independently from outside the Police station. She was in Police custody for about 5 hours before she communicated with her husband. This was in the presence of 3 Police Officers. In such a context the wife's inculpatory statements about the accused could amount to pressure. One cannot see the meeting and communication between the husband and wife as meeting the standards of Section 27(l)(f) of the Constitution. They were not treated with humanity and with respect for his or her inherent dignity. There was no requirement for the Police to be present when the accused met his wife. Their presence could be viewed as intimidation suggesting that they know what the wife knew and would say to the accused. The Police had enough material from the wife's interview to put allegations to the accused under caution.
According to (PW 11) when the wife made the inculpatory statements: "I observed accused demeanor. He appeared quite normal. He did not verbally respond to his wife. He was looking down."

The timing of the caution interview in relation to the overall investigations is also relevant in terms of Section 27(1)(a) and (c) of the Constitution. According to the Caution statement accused is asked whether he wishes to speak to your Solicitor before you give any statement to the Police. He is stated to have said "No". One notes that this is at 8.00pm on a Friday night. The accused was in detention from about 11.00am. Was he "informed promptly in a language that he understands of the reason for his arrest or detention and of the nature of any charge that may be brought"? (Section 27(1)(a) of the Constitution). The accused was also in Police custody on 3/8/99 and 4/8/99. Was he informed then and on 6/8/99 that he was likely to be charged for any offence? As Judges' Rule (c) states ". . . every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor." Between 11.00am to 8.00pm there would have been no hindrance to the investigation if he was told about his right to consult a solicitor. Was he informed promptly of this right as per Section 27(1)(c) of the Constitution? This Court does not need to traverse the succinct analysis of these constitutional provisions on the right to Counsel undertake by the Hon. Chief Justice in Mool Chand Lal Shameem J has also traversed this in State v Ram Lingam (Cr. Case HAC 010 of 2000S). Her Ladyship has stated: "The most appropriate remedy available for an accused person who is deprived of the services of a solicitor and who has not waived his/her right to a solicitor before he/she is questioned by the police, is the exclusion of that statement in evidence. It should not be necessary for the accused to allege that the statement was involuntary. A mere breach of the right, if it results in unfairness to the accused (as it would invariably) will result in the exclusion of the statement whether or not the statement is found to be voluntary" (emphasis in original). The right to counsel does not arise when the Police are already to interview an accused.

In his submissions learned State counsel referred to the judgment of the Court of Appeal in Kuar Singh v The State (Cr. App No AAU 0001 of 1992). The FCA states:

"What constitutes oppression that prevents a confession being treated as having been made voluntarily was considered by Sachs J. in R v Watson, tried on 7 December 1965. He referred to what he said on the matter two weeks earlier in R v Priestley. What he said in Watson is reported under the title "Note to Martin Priestly" at 5 Cr.App.R. So far as is relevant in these proceedings he said:

"...in [Priestley] I mentioned that I had not been referred to any authority on the meaning of the word "oppression" as used to the preamble to the Judges' Rules, nor would I venture on such a definition and far less try to compile a list of categories of oppression. but, 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 nor 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 make 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." [emphasis mine]

In his submissions learned State counsel, arguing the voluntariness of the caution interview, states:

"It is further submitted that the accused at the time of his interview was a cane cutter, someone used to the vigorous, tough and toilsome work of cutting cane in the scorching heat of the Western sun in undoubtedly long hours and at odd times such as very very early in the morning or late in the evenings, light permitting. Thus he is a person of tough character and used to the ways of the world as defined in Priestley above."

The accused maybe a physical tough character as a cane cutter and farmer. However whether he is used to the ways to the world is another matter. In his address from the dock the court observed his demeanor. His Hindi was very uncouth and unsophisticated. His level of education is not known. He was interviewed in Hindustani. He appeared to the Court to be an unsophisticated cane cutter unlike Mool Chand Lal, an experienced security officer, and Ram Lingam who appeared articulate and intelligent. He would, under Police detention, be unaware of his rights to seek legal advice unless so informed. As Shameem J stated in Ram Lingam's case: "No right can be waived, unless the Police officer concerned has clearly explained the right to the accused in simple terms." As such the Court finds that the requirements of Section 27(1)(a) and (c) were not fulfilled. Further, he may be a tough canecutter in the scorching heat of the West by day but not used to be interviewed in the circumstances he was by Police at night.

In Mool Chand Lal the Hon. Chief Justice had stated "it is clear that the Police Department and in particular its criminal investigation branch would need to take earnest steps to bring their officers up to date, if they had not already done so, about proper procedure and provisions under the new Bill of Rights for investigating persons under arrest or detention. This is a crucial regime in the modern system of criminal investigation and justice."

Learned State counsel referred to the case of State v Raymond Sikeli Singh and 3 others (Ltk Cr. Case HAC 0007 of 1999L). In that case Townsley J had considered various authorities the admissibility of confessions including Mool Chand Lal. This Court is aware that "The rights of the accused under Section 27(l)(c) are by no means absolute in terms, they must be balanced against other rights and of course the general welfare of the community." (Mool Chand Lal). Learned state counsel referred to Judge Townsley's quote from the case of R v Delaney (1989) 88 Cr App p.388 which states: "But the mere face that there has been a breach of the Codes of Practice does not itself mean that evidence has to be rejected. It is not part of the duty of the Court to rule a statement inadmissible simply in order to punish the Police for failure to observe the Codes of Practice." This Court has no business to punish Police. In the new regime of Fundamental rights, referred to by the Hon. Chief Justice in Mool Chand Lal the Court has to balance the individual rights of the accused and the general welfare of the community. It is the general interest of the individual accused and the community to have a fair, transparent and efficient investigation process. Police have to follow due process. They are ultimately accountable to the democratic process. They are as much bound to the Bill of Rights chapter of the Constitution as are the Courts.

Whether we consider an accused's right as to have access to a lawyer information right or other rights in detention or the investigation process, the test we need to ultimately consider is whether it is "fair and right" that the evidence be admitted. Some of the factors considered in weighing evidence in such circumstances were articulated by Cook P in R v Goodwin (1993) 2 NZLR 153 at 171:

"In New Zealand cases have already yielded a number of examples of good reasons, for departing from the prima facie exclusion rule. They include or may include waiver of rights by the person affected, inconsequently, in the sense that the Court can be satisfied that the admission would have been made without a breach; reasonably apprehended physical danger to the law enforcement officer or other persons, other reasons for urgency such as the risk of destruction of evidence; and the triviality of the breach if it is only a marginal departure from the individual's rights" (quoted in Raymond Sikeli Singh & Others).

In this, case the cumulative effects of the breaches amount to serious undermining of the accused rights. The Court cannot say with certainty that if the accused had access to a lawyer on Friday 6/8/99, whether he would have made any confession. In this case there was by 6/8/99 at least no risk of destruction of any evidence. As indicated earlier there was no urgency in conducting the caution statement at night nor reconstructing the scene. It should be recognised that unlike in Mool Chand Lal and Ram Lingam the accused was not a sophisticated and educated person. In these cases there were partial challenges to the alleged admission. In Raymond Sikeli Singh & Others no admissions of fact were made by the accused persons in their caution statements. In the case of Sudesh Jeet v State (Cr App No AAUU 0036 of 1995) the Court of Appeal in a most recent judgment (18/10/2001) considered the issue of admissibility. The FCA considered section 27(1)(b) of the Constitution. In that case the prolonged detention for a period of two days and nights was seen as unfair and oppressive. This is not the situation here. The accused was detained on and off. He was in detention for an unbroken period of nine hours prior to his interview. He was not informed of his right to counsel during this period. The interview was concluded at night, commencing at 8pm and finishing at 2.35am. The reconstruction of the scene at about midnight. The manner and circumstances of the confrontation between the accused and his wife in the Police Station is a matter of concern. The subsequent 5 hour interval in which accused treatment by Police remains unclear. Further, the Medical Report tendered does not resolve doubts about the nature of assaults alleged. Any doubt in this regard has to be resolved in the accused's favour.

The Court has considered all the circumstances in the obtaining of the confessional statements. In the Court's view when considered together these were unfair and oppressive. The Prosecution has not convinced the Court beyond reasonable doubt that the accused caution interview notes and charge statements were voluntarily made. They are ruled to be inadmissible.

Objection to admissibility of caution interview notes and charge statements sustained.

Marie Chan