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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC0005 OF 2003L
THE STATE
V
AKLESH PRASAD
s/o Surend Prasad
Mr. K. Tunidau for the State
Ms. J. Nair for the Accused
Hearing: 20, 25, 28 October 2004
Ruling: 29 October 2004
SENTENCE
Aklesh Prasad, you have pleaded guilty and have been convicted of two counts of murder, this is your sentence.
The facts presented to the court and acknowledged by you are that the two deceased are husband and wife. Mr. Narain Singh a retired school teacher was 60 years old and his wife, Prakash Wati was 55 years old and they lived at Bilalevu settlement in Sigatoka.
On the 13th October 2002 at about 4.30pm, you entered the deceased’s
1. The caution interview or confession was fabricated.
2. The accused was told to just sign.
3. The interview was not read back to the accused.
4. There was a breach of his constitutional and human rights.
The grounds upon which a confessional statement can be excluded from evidence are either, that it is not voluntary or that it was obtained unfairly and in breach of the rights given to persons in police custody under section 27 of the Constitution.
In relation to voluntariness, breaches of the Judges’ Rules are relevant but do not determine what is voluntary. The real question under principle (e) of the preamble to the Judges’ Rules is whether the statement is 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.”
As to breaches of the Constitution, section 27(1) and (2) provide as follows:
“(1) Every person who is arrested or detained has the right:
(a) To be informed promptly in a language that he or she understands of the reason for his or her arrest or detention and of the nature of any charge that may be brought;
(b) to be promptly released if not charged;
(c) to consult with a legal practitioner of his or her choice in private in the place where he or she is detained, to be informed of that right promptly and, if he or she does not have sufficient means to engage a
legal practitioner and the interests of justice require legal representation to be available, to be given the services of a legal practitioner under a scheme for legal aid;
(d) to be given the opportunity to communicate with, and to be visited by:
- (a) his or her spouse, partner or next-of-kin; and
- (b) a religious counsellor or social worker.
(e) to challenge the lawfulness of his or her detention before a court of law and to be released if the detention is unlawful; and
(f) to be treated with humanity and with respect for his or her inherent dignity.
(2) The authorities holding a person who has been arrested or detained must promptly take all reasonable steps to inform his or her spouse, partner or next-of-kin of his or her arrest or detention.”
In R v Mallinson [1992] NZCA 163; (1993) 1 NZLR 528 (referred to with approval by the Chief Justice for Fiji in Mul Chand Labasa High Court Case November 1999) the New Zealand Court of Appeal held that the onus was on the prosecution to show firstly that the suspect had been told of his right to consult a lawyer before the questioning began, and secondly that the suspect understood the substance of the right and that the exercise of the right would have been implemented if he chose to exercise it. However evidence that the right had been advised, normally led to an inference that the suspect understood the nature of the right.
In that sense Mallinson was not told of this right until an hour after his arrest, but before he was interviewed. His interview was excluded, and the jury directed to acquit. On a case stated to the Court of Appeal decided that the right to consult a lawyer, and the right to be informed of that right, arose on arrest, and the right must be communicated immediately after arrest and before “the legitimate interests of the person who is arrested are jeopardized.” The police have a duty to inform the suspect of this right but no particular formula is required as long as the suspect knows he may exercise the right before questioning begins.
The Court of Appeal held that where he had been told of the right to a lawyer before questioning began, the proper inference should have been that he understood that the rights were exercisable immediately and before questioning began. Thus the trial judge should not have excluded the statements, and a new trial was ordered.
In R v Butcher [1991] NZCA 135; (1992) 2 NZLR 257, Cooke P said at p. 266:
“As indicated in Kirifi, there may be circumstances in a particular case where, despite some degree of transgression of the rights, it is fair and right to admit a confession in evidence ..... prima facie however, a violation of the rights should result in the ruling out of evidence obtained thereby. The prosecution should bear the onus of satisfying the court that there is good reason for admitting the evidence despite the violation.”
In The Queen v Thompson [1893] UKLawRpKQB 74; (1893) 2 QB 12 Cave J. at p. 18 said:
“I would add that for my part I always suspect these confessions, which I suppose to be the offspring of penitence and remorse, and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner’s guilt is otherwise clear and satisfactory; but, when it is not clear and satisfactory, the prisoner is not infrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession; - a desire which vanishes as soon as he appears in a court of justice.”
In Cleland v The Queen 151 CLR at p.15 Murphy J. said:
“The voluntariness of a confession is suspect if it is obtained by interrogation rather than being volunteered, of it, although volunteered, the procedure involved interrogation; if the confessor was in custody, lawful or otherwise; or if anything suggests inducement by threats, promises, false representations or other trickery. Because of circumstances appearing from the evidence, a judge may treat a confessions as suspect for involuntariness (even if this was not asserted by the accused because he denies making it).
If the accused within custody the trial judge must be satisfied that, notwithstanding that the accused was under the control of the police or other custodians, the confession was voluntary. If there is suspicion of threats or other inducement, the judge must be satisfied that there were none, or that these did not operate by way of inducement.”
Also in Cleland Deane J. at p. 18 said:
“At common law, a confessional statement is not admissible in evidence against an accused unless it be established that it was voluntarily made....If the making of such an alleged statement has been procured or influenced by unlawful or improper conduct on the part of law enforcement officers, that circumstance will be of relevance on the question whether the confession was voluntary. It will also, if it be established that the confession was voluntary, give rise to a subsequent question whether, in the discretion of the trial judge, evidence of the alleged confessional statement should be excluded for the reason that the reception of such evidence would be unfair to the accused: in this regard, the question is not whether the accused was treated unfairly; it is whether the reception of evidence of the confession would be unfair to him.”
In Collins v R [1980] FCA 72; (1980) 31 ALR 257 Brennan J. cautioned that it was important to ensure that a court does not tease out some fanciful meaning from or attribute some extravagant effect to what is said by a person in authority. When commenting on the observations of Lord Morris in DPP v Ping Lin, His Honour said:
“What His Lordship emphasizes is the importance of ascertaining all of the facts which may bear upon the confessionalist’s state of mind, and the importance of a practical commonsense assessment of the effect of those facts upon his mind. But the issue of voluntariness is not to be regarded as a mere problem of semantics: it is not resolved by a simple inquiry as to the meaning of the words used by a police officer (or other person in authority). An assessment must be made of the effect of the verbal and non-verbal conduct of the police officer (or other person in authority) upon the will of the confessionalist in the circumstances in which the confession is made. If the evidence does not show that the confession was made in the exercise of a free choice by the confessionalist to make it, the confession is inadmissible. As the means by which a confessionalist’s will can be overborne are various, one cannot postulate in advance of particular cases the extrinsic circumstances which will necessarily result in the exclusion of a confession as involuntary, or which will inevitably prove insufficient to found a challenge to its voluntary character. When all the facts are ascertained then in a commonsense way the court must find whether or no the will of the particular confessionalist was overborne.”
In considering the issues, the onus is on the prosecution to prove beyond reasonable doubt, voluntariness, lack of oppression, no breach of the Constitution and, if there has been a breach, to show that the breach was inconsequential and did not result in unfairness or oppression.
I turn now to the evidence in this matter.
Evidence was given by officer, Anup Kumar who indicates he been a police officer of 14 years, 17 years in the Crime Branch and on the 14th October 2002, he interviewed the accused. He says under oath that the accused was cautioned that he appeared well. That he made no complaint before being interviewed.
The interview was conducted in Hindustani at the request of the accused. That he informed the accused of his right to consult a lawyer of his choice and he further informed the accused of his rights to Legal Aid and that the police would organize it.
He says he informed the accused of his rights to have family members or friends contacted. He says the accused refused, he did not want a lawyer of his choice, he did not want Legal Aid and he did not want friends present. He says that officer, Dharma Chandra was present as the witnessing officer. He produced to the court, the record of interview in Hindustani and an English translation of it. He says that the record of interview records the questions asked and the answers given. That at the conclusion of the record, it was read in its entirety to the accused and he was asked if he wanted to add to or correct anything and he inclined. He says there was no inducement, the accused was invited to sign the document and he signed it but he was not forced to sign it.
In answer to cross examination, he said that he released the accused from the cell and took him to the Crime Office for interview but in fact the officer took him to the officer commanding the Police District’s Office. He described the building, Sigatoka Police Station with all of the relevant rooms and facilities being on the upper level, that is the charge room, cell block and the office in which the interview took place.
He says that the accused had his breakfast when he was released. He had his shower and it was subsequent to that that the interview commenced. He says he saw the accused going from the cell to the washroom for his shower. The washroom being beside the cell block. It was put to him that an Indian officer assaulted the accused on his way to the shower and he said this was a false allegation. He says when he saw him in the cell he was dressed. He acknowledged in cross-examination that belts are taken from prisoners and shoes. He denied in cross-examination that the only clothes the accused had on in the cell was his underwear.
He was questioned extensively by counsel for the accused as to the knowledge he acquired of the incident prior to conducting the record of interview. I give little weight to this line of cross-examination, as I would accept any interviewing officer, to have acquired some knowledge or a significant knowledge of the allegations prior to conducting a record of interview.
I note that no questions were put to the officer with respect to the accused being required to mix grog and serve grog to the officers, matters that I will refer to later when dealing with the evidence given to this court by the accused.
The officer denied in cross-examination to suggest that he had not read back the record of interview to the accused and said, he did read it back and he did explained. He denied having offered cigarettes and kava to the accused but indicated in evidence that he did offer coffee and a cigarette.
He said again in cross-examination that he did ask the accused as to his health and if he is being treated well and he responded positively. It was put to the officer that the accused had no mattress or blanket in the cell, the officer’s evidence was that the mattress and blanket was provided by the police and finally, it was gain put to him that he just made the accused sign the document, that is the record of interview and that the questions and answers were given by the accused. This was denied by the officer.
The next witness was Detective Sergeant, Dharmend Chandra, who said he had been a police for 22 years, 16 years in the Crime Squad and was the investigating officer with respect to this matter and the witnessing officer with respect to the record of interview. He identified the accused in court. He confirmed the evidence given by the earlier officer that is the accused had been cautioned that
he had been given the option as to the language to be interviewed in and he elected Hindustani. That he had been told of his rights to consult a lawyer of his choice and the right to consult the Legal Aid Commission and that he did not exercise those rights. He generally confirmed the evidence given by the interviewing officer with respect to the questions being put and the answers being given and the opportunity being given to the accused to alter or correct the record prior to him being asked to sign it. He says that no promise or inducement was held out to the accused and he was not forced to sign the document.
In cross-examination, the accused was asked if he had any complaints prior to the commencement of the record of interview, he said he had noted in his police notebook that the accused had no complaints. He said in answer to questions he didn’t know what was in the cell but that the accused had expressed no complaints to the way he had been treated when asked and again he was asked questions with respect to his level of knowledge of what had occurred prior to the record of interview commencing and I have made comment earlier with respect to the relevance of that line of question.
He says the record of interview was read back in his presence. The accused was offered coffee and cigarettes but denied that the accused was offered cigarettes and kava to sign the document. When it was put to him in cross-examination that the accused was only asked for his details and nothing more, this was denied and he said that all questions were put to the accused and all the answers were given by him.
The third witness for the prosecution was Davendra Prasad Maharaj, a social worker of 20 years, a Hindu priest and a Justice of the Peace, who was requested by the police to attend upon the accused on the 14th October 2002. He says he went to the police station and he spoke with the accused. He says the accused appeared friendly and was not worried at all and he was in good condition that he had no complaint. He says that he asked him if he had any complaint and he said in reply that he was fed properly and slept well and discussed the incident with him.
In answer to cross-examination, he describes the accused being in a room and not being handcuffed. There was no police officer present when the conversation took place and that he told him what he had done. He says that he was there for about half an hour.
The accused gave sworn evidence. He says that he was arrested on the 13th October and was taken to the police station. He was kept in custody, his clothes were removed, he was left in the cell with only his underpants, he couldn’t sleep because of the mosquitoes and the smell of the air. That nothing was provided for him and at 2 or 3 o’clock, he requested water and that was provided. He was told to use the toilet in his cell. He described the size of his cell. He says he had nothing to sleep on. That in the morning he was told by a Fijian police officer to clean his cell. An Indian officer told him to have a bath, asked him about the offence, swore at him, hit him and it was after that he was given his clothes.
He said the two police officers that gave evidence then took him to a separate room and asked him some questions about his name and his parent’s names. That he was then sent to another room to mix grog. In that room, there were two police officers. He mixed the grog, served the officers, he then gave a lengthy description about serving grog for some period. None of this material was put to the officers and is clearly a breach of the ruling in Browne v Dunn and I give little weight to it.
He says one of the officers had a book in his hand. He says he was asked the level of his education and he told them he didn’t complete class 6. He says he was asked which language he wanted to be interviewed in and he said, Hindustani. He said he was not asked about the offence and that all he was asked were questions relating to his particulars and to his parents and subsequently, he was asked to sign the document and that the officer with the book told him where to sign and that in the afternoon, his fingerprints were taken. He was then taken back to the cell.
The next day he went to hospital. There appears to be no relevance in the evidence of his trip to hospital with respect to the admission of the record of interview or the grounds of objection and he was subsequently taken to Nadi Courthouse. He says he wasn’t asked any question at all apart from those relating to his particulars. He wasn’t told why he was arrested. Didn’t know why was he was taken to the police station. He says the Justice of the Peace was only present for about 5 minutes. He says that he was relaxed at that time. He says that the Justice of the Peace did not ask him whether he had any complaints. So, he didn’t tell the Justice of the Peace what happen.
He agreed that his level of education enabled him to write stories in Hindi and English and to read Hindustani and he agreed if it was read back to him, he would understand. He then identified the signatures on the record of interview as being his.
The burden rests with the State to prove beyond reasonable doubt that the confessions were voluntarily made, that there was a lack of oppressions and that there was no breach of the Constitution or of the Judges’ Rules.
On the evidence that has been placed before the court to which I have referred, I am satisfied that the record of interview was properly conducted, that is the questions were asked and the answers were given and that it was not fabricated. I accept the evidence of the two police officers and of the Justice of the Peace in this regard.
So far as the alleged assault is concerned, it seems to be separate in time from the conduct of the record of interview and minor in nature and if it did occur, it would appear to have had no adverse bearing on the record of interview and certainly not such as to make its admission unfair to the accused.
I do not accept the version given to the court by the accused.
I am therefore satisfied beyond reasonable doubt, that the caution interview was voluntarily made in circumstances of fairness to the accused and accordingly, the admissions contained in that interview are admissible.
JOHN CONNORS
JUDGE
At Lautoka
25 October 2004
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