Chand v Regina [1979] FJSC 26; Criminal Appeal No. 26 OF 1979 (8 June 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Appellate Jurisdiction
Criminal Appeal No. 26 of 1979

BETWEEN

DHANI CHAND
s/o Mahadeo
(Appellant)

AND

REGINA
(Respondent)

Mr. S.D. Sahu Khan, Counsel for the Appellant
Mr. D. Williams, Counsel for the Respondent.

JUDGMENT

The accused was charged with arson of a bure on 6th October, 1978. He pleaded not guilty and was convicted on 18.1.79 and sentenced to 5 years imprisonment.

He appeals against conviction and sentence.

Following two amendments and additions at different times there were eventually 4 grounds of appeal against convictions.

Ground 1 (a) complains that the learned magistrate did not apply his mind properly to the question of whether or not the complainant was in custody at the time he made alleged confessions and he erroneously admitted them in evidence.

The Fiji Court of Appeal considered the effect of interrogating an accused when he was in custody in Criminal Appeal 59/77, Ali Hassan & Ors. V. R. Vol. IV (stereotyped) 1977 F.C.A. Reports at 799. in that case the trial judge found that the accused was in custody during the interrogation which included his confession but that no force, threats or inducements had applied. He found that the accused was not induced to confess by reason of his being in custody. The Fiji Court of Appeal stated:

"It has been observed many times that a breach of Rule III of the Judge's Rules may, and at times, does lead to the exclusion of an alleged confession; but ultimately all turns on the trial judge's decision as to whether, breach or no breach it has been shown by the prosecution to be voluntary".

The trial judge stated that although there not alleged breaches of the Judge's Rules they did not militate against the voluntary nature of the statements.

The Fiji Court of Appeal observed at p. 837 that the trial judge had exercised his discretion correctly.

It is apparent from that judgement that an admission given by an accused whilst in custody is not inadmissible because he was in custody even if he is not cautioned under the proper Rule. However the court must consider whether the fact that he was in custody affected the voluntary nature of the statement. It follows, I think, that where there is evidence in the record which tends to show that the accused was in custody the magistrate should consider that evidence. If he decides the accused was not under arrest and had attended the police station quite voluntarily then no further problem arises on that particular aspect. But if he decides that accused was in custody then it becomes necessary to consider what effect that had, if any, on the voluntariness of the admission or admissions.

Cross-examination of the police witnesses was to the effect that they had beaten accused severely to make him confess. D. Corporal Jainappa who interrogated the accused stated in cross-examination that the accused was taken to the police station and that during the interrogation the accused was under his control and in his custody.

P.W.5, D.Sgt. Shiu Shankar said that he saw the accused at his farm and told him to come to the police station to answer questions regarding arson. The sergeant said the accused was in custody at the time due to his demeanour – whatever his demeanour may have had to do with it. In cross-examination he said he told accused he had to come to the police station.

The learned magistrate clearly and emphatically found that the accused was not beaten or offered any inducements. With regard to the issue of custody which had been clearly reaised in cross-examination the magistrate said,

"I do not propose to explore the somewhat esoteric question as to the accused's status at the time. Suffice it to say that I consider that the correct caution was administered".

There was evidence for the magistrate to consider on the issue as to whether the accused was in custody. It was not, as his words seem to suggest, an issue which was simply hinted at.

In my view he should have decided on the evidence adduced during cross-examination whether the accused was in custody at the time and if so whether it affected the voluntary nature of admission.

Following that interrogation and admission the accused was formally charged and made a further admission. The facts for consideration on this voire dire are very similar to those considered by the Court of Appeal in Daulat Khan v. R. Cr. App.3/76 at P. 1245 of Vol. I, 1976 (typescript). There the magistrate said he accepted that the accused was brought to the police station for questioning. He also found that the accused was not threatened, assaulted, or abused and that the interrogation was fairly recorded. However, the Court of Appeal held that there was evidence to suggest that the accused was in custody at the time and that the learned magistrate had failed to apply his mind to deciding whether the accused was in custody and if so what effect it had on the issue of voluntariness. They took the view that in the circumstances the statement obtained by interrogation could not be relied upon by the prosecution.

They held that the confession when the accused was formally charged was also in doubt as it depended largely upon the fate of the first confession.

I could not possibly distinguish the instant case from Daulat's case (supra).

Following the reasoning of the Fiji Court of Appeal I find that the magistrate did not consider all the relevant factors apparent in the record when finding that the statements were admissible.

I find that he erred in relying upon them in the circumstances.

The appeal is allowed and the conviction is set aside and It Is Ordered that the accused be re-tried before another magistrate.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA,
8th June, 1979.

Messrs. Sahu Khan & Sahu Khan for the Appellant
Director of the Public Prosecution for the Respondent

Date of Hearing: 1^st June, 1979.