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State v Sinha [2010] FJHC 473; HAC046.2008 (14 October 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC046 of 2008

STATE

V

SALENDRA SEN SINHA

Hearing: 13th October 2010
Ruling: 14th October 2010

Counsel: Ms A. Tuiketei & Ms A. Lomani for State
Mr. H.A. Shah for Accused

RULING

[1] The defence objects to the admissibility of the accused's caution statements. The statements are contained in the record of interviews of the accused (MFI 1A & B). The accused was interviewed twice under caution. The first interview was conducted at Namaka Police Station on 13 September 2007. The second interview was conducted at CID Headquarters in Suva on 28 October 2007 and concluded on 29 October 2007. The accused made incriminating statements in these interviews.

[2] The sole ground for objection is that the accused was induced in making the incriminating statements. The form of inducement was a promise that the accused would not be charged if he assisted the police to identify others involved in the case.

[3] The principle of admissibility of self incriminating statements is settled. In R v Ibrahim [1914] AC 599, Lord Sumner laid down the principle as follows:

"It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Hale."

[4] An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority (R v Voisin [1918] 1 KB, at pp 537, 538). In R v Smith (1959) 43 Cr. App. R. 121 it was held that even the most gentle threat or slight inducement will taint a confession. The burden of proving admissibility is on the prosecution and the standard is beyond reasonable doubt (R v Sartori (1961) Crim. L.R. 397).

[5] The prosecution called three witnesses. Inspector Shalesh Kumar was both the investigating and the interviewing officer in this case. DC Rajesh Kumar witnessed the first interview while Shamim Khan from FIRCA office witnessed the second interview. The interviews are signed by these officers and the accused. There is no dispute regarding the authenticity of the signatures.

[6] The accused gave evidence. He gave evidence of his dealings with Inspector Kumar while the investigations were on going. The accused gave evidence of three secret payments that he made to Inspector Kumar in return of certain favours from him. The payments were in cash. The accused said that Inspector Kumar promised him that he would not be charged if he assisted the police to implicate others involved in the case. He said he was led to believe by Inspector Kumar that he was going to be made a State witness. The accused said he was surprised when he was charged on 6 November 2007. The accused also said that Inspector Kumar promised him that the prosecution was not going to oppose bail and bail was in fact not opposed by the prosecutor when he was presented in the Magistrates' Court.

[7] Inspector Kumar denies making any promise to the accused. He denies taking any payments from the accused. Inspector Kumar said that the accused freely and voluntarily made the statements in his interviews. The witnessing officers gave evidence supporting the evidence of Inspector Kumar.

[8] If there was a promise made to the accused, not to charge him in return for his statements implicating others involved in the case, then in law that would amount to an inducement. The issue is one of credibility of Inspector Kumar and the accused.

[9] The defence submits that Inspector Kumar had sufficient evidence to charge the accused in September 2005, but he unnecessarily delayed to charge him until November 2007 because he had promised the accused that he would be made a State witness. The defence further submits that the accused co-operated during the caution interview because the promise operated in his mind. The defence invites the Court to reject the evidence of Inspector Kumar and to accept the evidence of the accused.

[10] In assessing the credibility of the witnesses, I bear in mind their demeanour when they gave evidence. I bear in mind that police officers are experienced and trained witnesses.

[11] However, in the present case, I find Inspector Kumar to be a credible witness. I reject the evidence of the accused on the alleged promise made to him by Inspector Kumar. If such promise was indeed made, the accused would not have waited until 2010 to inform his counsel about the promise. He was charged in 2007. In his charge statement he makes no mention about the alleged inducement by Inspector Kumar. Inspector Kumar was not involved in charging of the accused. A different police officer was involved in charging the accused.

[12] It must have surely occurred to the accused that the promise made to him by Inspector Kumar was very important. But it took him almost three years to inform his counsel about it.

[13] Unfortunately, I have to make findings on credibility on collateral issues, when the substantive issues are still to be tried.

[14] I accept Inspector Kumar's explanation for the delay in the investigation of the case. This was a complicated investigation and he said he had to carry our further investigation to verify the statements of the accused that he made in his interviews. The verifications are reflected in the second interview of the accused. I accept Inspector Kumar's evidence that the accused freely and voluntarily gave statements, and without any inducement.

[15] I am satisfied beyond reasonable doubt that the accused was not induced by a promise to make statements. The caution statements of the accused are admissible.

Daniel Goundar
JUDGE

At Suva
14th October 2010

Solicitors:
Office of the Director of Public Prosecutions for State
Office of Messrs. Haroon Ali Shah for Accused