State v Narayan [2015] FJMC 109; Criminal Case 1710.2013 (2 November 2015)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Criminal Case No: - 1710/2013

STATE

V

RAHUL ASHNEEL NARAYAN

For Prosecution: PC Josuha
For Accused: Mr.R. Singh
Date of Ruling : 02nd of November 2015

RULING ON VOIR DIRE

1. The accused is charged with two counts of Burglary contrary to section 312(1) of the Crimes Decree and one count of Theft contrary to section 291(1) of the Crimes Decree.
   
2. The accused is challenging the admissibility of his caution statement and charge statement based the assault by the arresting officers and other police officers during the interview, was oppressed and was denied rights under the Judges Rules and article 9(3) of the International Covenant on Civil and Political Rights.
   
3. For the voir-dire hearing the prosecution called only the charging officer and for the defence the accused his mother and a doctor gave evidence. At the conclusion of the hearing only the defence opted to file closing submission and this was filed this morning. I have considered that also for my ruling.
   
4. As noted earlier only witness called by the prosecution was DC 3641 Taniela, the charging officer and he said he is in the police force for 09 years and presently based in Nabua Police Station. On 20/09/2013 was in the duty and was approached by the IO and charged the accused. He was given all the rights and he was not forced. The original charge statement was marked as PE-01. In cross- examination the witness said there was a relative present during the charging.
   
5. The defence called Dr.Shivangani as their first witness. She is in medical service for 04 years and saw the accused on 24/09/2013 .The accused had some injuries near to the eye and was informed by the accused that he was assaulted by the police. The injuries were caused by blunt force. The medical report was marked as DE-01. In cross- examination the witness said injuries were on soft tissues and seems to be recent injuries.
   
6. The accused said he was arrested on 18/09/2013 and took to the Nabua Police station and was brought back to the shop around 2.30pm. When the accused denied the allegation he was punched by a police officer. He was punched throughout the investigation and taken to Sukuna Park where the assault continued. The police denied his request to go to the hospital. On Friday the interview commenced. After the interview he was sent back. When he was charged even though his aunt was present he was not given a chance to talk to her. On 22/09/2013 he was taken to a doctor and was treated. He admitted because he was assaulted. In cross- examination the accused denied inflicting injuries to him and said after granted bail went to see the doctor.
   
7. His mother said when she visited the accused on Saturday his face was injured. In the detailed closing submission the learned counsel for the defence submitted that the prosecution has failed to prove beyond reasonable doubt that the accused gave his statement voluntarily and there are evidence to show that he was subjected to assault and oppression and therefore the disputed statements in this hearing need to be excluded.
   
8. Having summarized the evidence above manner now I would consider the applicable law for this case.
   
9. In Wong Kam-ming v The Queen (1980) A.C. 247, P.C., the Privy Council observed that:
   

"[t]he basic control over the admissibility of statements are found in the evidential rule that an admission must be voluntary i.e. not obtained through violence, fear or prejudice, oppression, threats and promises or other improper inducements. See decision of Lord Sumner in Ibrahim v R [1914] UKPC 16; (1914-15) AER 874 at 877. It is to the evidence that the court must turn for an answer to the voluntariness of the confessions."

10. In Ganga Ram &ShiuCharan v Reginam Criminal, Appeal No. 46 of 1983 on 13/7/1984, the Fiji Court of Appeal elaborated this in the following manner.
    

"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)AC574.

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".

11. The Prosecution managed to call only the charging officer during the hearing. This officer could explain only what happened during the charging and there are no evidence to show the conduct of police officers during the arrest and the interviewing period.
    
12. Even though the Prosecution is denying the accused was subject to assault there is a medical report tendered by the defence as an exhibit. This was conducted on 24/09/2013 only a day after he was granted bail. The doctor who conducted the examination found that he got injuries in his face and other parts which were consistent with the evidence of his mother. Even though the prosecution alleged that these were self inflicted injuries I am not satisfied about that explanation.
    
13. Even though there are some contradictions in the defence evidence that would not make the prosecution version stronger in view of failing to call relevant witnesses as well as based on medical evidence.
    
14. Having considered above reasons I am not satisfied beyond reasonable doubt that these statements were given voluntarily by the accused .Therefore I decide that the caution statement and the charge statement to be excluded from the trial proper.
    

Shageeth Somaratne
Resident Magistrate