State v Khan [2013] FJMC 352; Criminal Case 271.2009 (24 September 2013)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 271/2009

STATE

V

FEROZ KHAN

For Prosecution : PC Josua
Accused : In person

RULING ON VOIR DIRE

[1] The accused is charged with one count of Found in Possession of Illicit Drugs contrary to section 5(a) of Illicit Drugs Control Act No. 9 of 2004.

[2] The accused is objecting to tendering his caution interview which contained confession in this trial. The objection was based on fact that he was forced to make this admission.

[3] A voir dire hearing was conducted on 24th June 2013 and the prosecution called two witnesses in that. The accused gave evidence for his case.

[4] PW1 was PC Niumaia, the interviewing officer. He said he did not assault the accused during the interview. Also no one else did. Also the accused was not subjected to any intimidation during the interview. The accused did not cross examine PW1.

[5] PW2 charged the accused and he also denied any assault or intimidation on the accused. Again the accused did not cross examine PW2.

[6] The accused said the police officers came to his home and took off his clothes subject to physical exercises and threatened him there. In cross examination he admitted that he was threatened only in his home.

[7] Now I will briefly consider the relevant law in this kind of applications.

[8] In the case of Ganga Ram & Shiu Charan v Reginam Criminal, Appeal No. 46 of 1983
on 13/7/1984, Fiji Court of Appeal stated:

"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".

[9] Therefore the prosecution needs to prove that the statement was obtained voluntarily and without use of force, threats, oppression or any inducement.

[10] Also the prosecution needs to prove that the statements were obtained without any breaches of the accused's rights, and if there were any breaches, there was no resulting prejudice to the accused. The prosecution needs to prove these grounds beyond reasonable doubt.

[11] Two witnesses called by the prosecution denied that the accused was subjected to any intimidation or assault. Their evidence was about what happened in the police station.

[12] The accused also admitted that there was no kind of threatening in the police station. It was done only in his home. According to him he was subject to physical punishments there and was also threatened by the police officers.

[13] The prosecution did not call any witnesses to rebut this claim. Their position was that he was not subject to any kind of threat or assault in the police station. I can't accept this position. The prosecution has the burden to prove that the accused gave his statement voluntarily. If he was subjected to any threat it does not need to be only in a police station. Also I note that the accused was arrested around 1pm and he was interviewed around evening on the same day. If he was subjected to any intimidation in his home it would have been still in his mind when he admitted this offence in the evening.

[14] Based on the above reasons I am not satisfied that the accused gave this statement voluntarily to the police. Therefore I decide that this statement is not admissible in the trial.

24th September 2013

H.S.P.Somaratne
Resident Magistrate