Nirmal v Reginam [1969] FijiLawRp 34; [1969] 15 FLR 194 (7 November 1969)

[1969] 15 FLR 194

COURT OF APPEAL

Criminal Jurisdiction

NIRMAL

v

REGINAM

[COURT OF APPEAL,^[1] 1969 (Gould V.P., Hutchison J.A., Marsack J.A.), 27th October, 7th November]

Criminal law — evidence and proof — assessment of credibility of witnesses — demeanour of witnesses to be considered in conjunction with the whale of the evidence.

Appeal — trial within a trial — evaluation of evidence — appeal court differing from trial judge where demeanour of witnesses not considered in relation to whole of the evidence.

At the trial of the appellant for murder objection was taken to the admissibility of oral and written statements alleged to have been made by the appellant, amounting to a confession. At the trial within a trial held by the judge to determine the question of admissibility, police officers gave evidence of the making of the statements and denied any assault threat or inducement upon or to the appellant. The appellant denied making the statements and said he had been forced to attach his signatures under threats and violence; he called witnesses to prove he had made complaints of ill treatment, and also his mother who said she had heard her son crying out from the tent where he was being interrogated, before she was taken further away by a policeman. Her evidence as to being taken away was supported by one police witness. The appellant said that he complained of ill treatment to a senior police officer who was admittedly in the tent for about fifteen minutes during the interrogation, but the particular officer was not called as a witness at the trial within a trial. The trial judge accepted the evidence of the police denying any threat, pressure or force and said that the appellant gave him the clear impression of giving fabricated evidence, and similarly, the evidence of his mother was suspect. He ruled that the statements of the appellant -were made voluntarily and admitted them in evidence.

1. Held: The assessment of the credibility of witnesses by their demeanour alone is wrong if it can be avoided; all the evidence should be weighed before deciding what to accept and what to reject.
2. The proper way to disprove the appellant's allegation that he had, during the interrogation, complained to a senior police officer, would have been for the prosecution to call that officer as a witness.
3. The evidence of the mother of the appellant was supported in part by the evidence of one policeman.
4. The appellant later complained to a solicitor, a Justice of the Peace and to a police officer enquiring into his complaints.
5. The evidence as a whole did not justify the ruling that the prosecution had discharged the onus of showing that the statements of the appellant were voluntary.
6. The conviction would be quashed and a new trial ordered:

Case referred to: Uganda v Khimchand Kalidas Shah [1966] EA 30.

Appeal from a conviction of murder by the Supreme Court.

B. C. Ramrakha for the appellant.

J. R. Reddy for the respondent.

The facts sufficiently appear from the judgment.

Judgment of the Court (read by HUTCHISON J.A.):

[7th November 1969]—

Appellant and another accused were convicted of the murder on the 4th day of September, 1968 of one Davendra Sharma, and appellant appeals against his convictions.

The main argument for appellant was that the learned trial Judge was wrong in admitting evidence of oral and written statements amounting to a confession made by appellant to the police on the 11th September, 1968. Counsel for appellant having stated, at the appropriate stage in the trial, his objection to the admissibility of this evidence, the trial Judge held a trial within a trial to determine the question. He heard the evidence of certain police officers and of appellant and certain witnesses whom he called. In his ruling at the end of the evidence, the learned Judge stated clearly and correctly what the law is on the point —

"It is a fundamental condition of admissibility in evidence against any person equally of any oral answer given by that person to question put by 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 of prejudice, or hope of advantage, exercised or held out by a person in authority, or by oppression. The disputed statements amounted to a confession and to be admissible, they must be free and voluntary and it is for the prosecution to show affirmatively that they were made without the prisoner being induced to make them by any pressure or force or by menace or violence or terror."

He then said —

"The 1st accused (the appellant) gave me the clear impression of giving fabricated evidence which he appeared to have rehearsed in details. Similarly I found the evidence of his mother Shiu Devi suspect. On the other hand I was impressed by the evidence of Sgt. Rameshwar Prasad, Constable Mahendra Singh and Senior Inspector Muniappa who denied applying threat, pressure or force on the 1st Accused or of seeing anyone applying any threat, pressure or force on the 1st Accused. I am satisfied that the 1st Accused had no injuries on his person."

We think that the learned Judge here fell into the error of endeavouring to assess the respective credibility of witnesses by their demeanour and the way they gave their evidence, and by that alone. This is wrong if it can be avoided. We adopt a passage from the judgment of the Court of Appeal of East Africa in Uganda v Khimchand Kandas Shah and Ors. [1966] EA 30 at p.31 —

"Of course, a court should never accept or reject the testimony of any witness or indeed any piece of evidence until it has heard and evaluated all the evidence in the case. At the conclusion of a case, the court weighs all the evidence and decides what to accept and what to reject."

We look then at the whole of what occurred on that day, the 11th September, 1968.