State v Rao [2013] FJMC 228; Criminal Case 298.2012 (6 June 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT NAVUA

Criminal Case No HAC: - 298/2012

STATE

V

ASHNEEL ANISHA RAO

For Prosecution : Sgt. Lenitasi
Accused : Ms.Drova

RULING ON VOIR DIRE

[1] The accused is charged with two counts of Attempted Arson contrary to section 363(a) of the Crimes Decree No.44 of 2009. These are indictable offences and the High Court gave the extended jurisdiction to hear this case.

[2] When the accused's plea was taken on 18/10/2012 the learned defence counsel informed that she is challenging the accused's confession made to the police on 31/08/2012.

[3] The reasons for the challenging are as follows:

1. The accused was threatened by Police officers, and bullied by them.
2. The accused was not given her rights.
3. The accused was subjected to long hours of interrogation.
4. The interview was conducted in English language not familiar to the accused.
   

[4] Accordingly a voirdire hearing was conducted on 16/05/2013 to decide the admissibility of the interview. The prosecution called 2 police officers and for the defence the accused gave sworn evidence. The defence also called father of the accused as a witness. Both parties moved to file written submissions, but up to now failed to do so.

SUMMARAY OF EVIDENCE

[5] The prosecution called 2 witnesses. PW1 was PC Simione who conducted the interview. He was the IO also and said he got a report about an attempted arson and visited the scene. He brought the accused to the police station on 31/08/2012 and PW1 gave her all her rights. The interview lasted for 3 days and WPC Sharon also witnessed the interview. In cross examination PW2 said he arrested the accused and during the entire interview WPC Sharon witnessed it. In re- examination PW1 explained that the accused understood the questions and the interview was finished within 48 hours.

[6] The PW2, WPC Sharon said she escorted the accused to the police station and the accused was given breaks and provided meals in the custody. She also said she signed in all interviewing pages and there were no threat or inducement during the interview. In cross examination PW2 said PW1 did not escort the accused from the scene and in each page all the parties have to sign. In re- examination PW2 said when she arrested the accused she did not explain her rights.

[7] After the prosecution closed their case the accused gave sworn evidence. She said that WPC Sharon arrested her and took her to police bure. There were some male officers with her and they were banging to a chair to frighten her. Interview was written and brought to her to sign and no one explained about the content. In cross examination the accused said she was given meals and brought to the Court on Monday. In re- examination she said she wanted an interpreter but it was not given. Also Friday evening to Monday morning she was in the police station and was traumatized from that.

[8] DW2 was Anil Rao, the father of the accused. He said when they arrested her they did not let him come with her and also did not give the reason for arrest.

THE LAW

[9] In the case of Ganga Ram &ShiuCharan v Reginam Criminal, Appeal No. 46 of 1983 on 13/7/1984, Fiji Court of Appeal discussed the applicable legal principles with regard to admissibility of confessions 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 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 – 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 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. This is a matter of overriding discretion and one cannot specifically categorize the matters which might be taken into account".

[10] One of the main grounds argued by the defence against the admissibility of the statement was that it was taken by oppression. In Prisestly v R (1965 ) 51 Cr App .R1, English House of Lords held oppression as 'something which tend to sap, and has sapped, that free will which must exists before a confession is voluntarily'

[11] The burden is on the State and this has to be discharged beyond reasonable doubt.

ANALYSIS OF THE EVIDENCE

[12] One of the grounds raised by the defence in the hearing was that the accused was not given an interpreter and she did not understand the questions during the interview. I note from the interview notes that she was asked about the language and she elected English. Therefore I do not think that's a valid argument.

[13] But there are some other factors which raise doubt about the prosecution's evidence. The prosecution's witnesses were not consistent with each other during the hearing. PW1 said he arrested the accused, but PW2 stated when she arrested the accused PW1 was not with them. These inconsistencies raises question about the credibility of the witnesses called by the prosecution.

[14] PW2 said that she witnessed the entire interview. In the first few pages she has signed with the accused, but in later pages there is a different signature. She explained that was her signature too. She did not give a good explanation about this anomaly.

[15] Also in page 14 and 15 which are crucial parts of the interview, accused's signature is not included. In fact these two pages did not contain even the signature of the Interviewing officer. Only PW2 signature is visible in these pages and the prosecution failed to give any explanation for this vital omission during the hearing.

[16] In fact the defence suggested in the hearing that these pages may have slipped in to the interview notes. Even though I would not consider that, without the accused's signature or valid explanation from the prosecution regarding that I believe the Court can't accept these pages.

[17] The accused was arrested on Friday night and produced to the Court on Monday. According to notes the interview was concluded only at 1150 hours on 02/09/2012. Therefore the interview was lasted for more than 24 hours. Even though there were breaks and refreshment given doubt would naturally arise whether the accused gave the statement voluntarily. Even though the accused is not a juvenile, she was 20 years old at the time of the interview. It is interesting to note that she started to admit about the offences after she was in custody for nearly 24 hours. This may point that she may be oppressed being in custody for long hours.

[18]For the above reasons I am not satisfied that the prosecution has proved beyond reasonable doubt that the interview was conducted fairly and the accused voluntarily gave that statement. Therefore I rule that the confession of the accused person in her caution interview is not admissible in evidence in this trial.

06/06/2013

H.S.P.Somaratne
Resident Magistrate, Navua.