Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Nand [1990] FJHC 62; HAC015d.1989s (5 November 1990)

IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

CRIMINAL CASE NO. 15 OF 1989

STATE

v.

1. BARMA NAND alias MOTU
s/o Ram Autar

2. MUN SAMI alias ANIL
s/o Ranga Sami

MANSLAUGHTER: Contrary to Section 198 of the Penal Code Cap. 17.

Ms. Aruna Prasad for the Prosecution
Mr. M. Raza for both Accused Persons

RULING

In the course of the prosecution's case objection was taken by learned counsel for the 1st accused Barma Nand that the interview record of his client was involuntary.

More particularly counsel objected to the interview on the sole ground that the incriminatory admissions contained in a few of the accused's answers were made through fear arising out of threats by both the interviewing and witnessing officers that they would get Fijian police officers to assault the accused if he did not admit pushing the deceased into the drain.

I remind myself that the burden of proving the voluntariness of an accused's interview record rests on the prosecution to satisfy the court of the fact beyond a reasonable doubt.

I am also guided by the dicta of the Fiji Court of Appeal in Sunil Kumar v. R. Cr. App. 10 of 1983 where it is said:

"It is clear law and has been for a long time that a confession obtained through violence actual or threatened, must be excluded irrespective of its truth or reliability.

The basic control over admissibility of statements is found in the evidential rule that an admission must be made voluntary i.e. not obtained through violence, fear of prejudice, oppression, threats and promises or other improper inducements. It is to the evidence the Court must turn for an answer to the voluntariness of the confession."

In this regard the prosecution called 2 witnesses, the interviewing officer Cpl. 932 Mohammed Shafique and the witnessing officer, DSP Loga Nadan. The interview record was also read and produced as Exhibit A.

The both testified that the 1st accused Barma Nand was interviewed under caution in the Valelevu Police Station recreational bure from 10.00 a.m. to 1.30 p.m. on the 2.1.89. During the interview the accused appeared normal to them. No force or threats of assaults were made to the accused before or during the interview and it appeared to both officers that the accused had given his answers voluntarily. The accused was also served with lunch during the interview.

The accused on the other hand gave sworn evidence that he was threatened to admit and forced to sign his interviews record. It is noteworthy that in his examination-in-chief the accused only mentions the name of Loga Nadan as the officer who had threatened him after abusing him whilst he was seated in a room. He had gone to the Valelevu Police Station voluntarily on the night of the incident 1.1.89 after he learnt that the police were looking for him and had remained at the Station until his interview the following morning.

Learned State Counsel in cross-examining the accused made much of the absence of any subsequent complaint of any threats by the accused's counsel during his numerous court appearances both in the Magistrate Court and in the High Court but with respect to counsel, the accused stated that he had told his counsel about the threats and did not know if his complaints were laid before any appropriate authority.

My view of the matter is that the absence of a subsequent complaint whilst a relevant factor for consideration it is in the particular circumstances of this accused an insignificant one.

As with many other "trials-within-trials" the decision in this case turns almost entirely on the credibility of the witnesses. Accordingly I have paid careful attention to the witness' evidence and their manner and demeanour in the witness box.

I find the accused went to the Valelevu Police Station voluntarily on the night of 1.1.89. I also find that no threats were made to the accused such as to influence him to make the very limited admission that he claims he made through fear.

It is particularly noteworthy that in relation to Ans 56 in which the accused is recorded to have said:

"A: I only held his neck and pushed him. Neither I kicked him nor fisted him."

The accused stated in cross-examination and finally in re-examination that he had been forced by threats of assaults to say that and to sign the interview record.

That answer raises more questions than it answers, for instance, why would the police force the accused to admit merely pushing the deceased and in the same answer record him as denying punching or kicking him? Why did not the police who already had the witnesses statements not force the accused to also admit that he punched and kicked the deceased?

In all the circumstances I am satisfied that the interview record of the 1st accused Barma Nand is voluntary and admissible and may be led in evidence in the trial proper.

(D.V. Fatiaki)
JUDGE

At Suva,
11th May, 1990.

HAC015D.89S