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State v Abourizk [2016] FJHC 313; HAC126.2015 (8 April 2016)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 126 OF 2015

BETWEEN :

STATE

AND :

1. JOSEPH NAYEF ABOURIZK
2. JOSESE MURIWAQA

Counsel : Mr Semi Babitu for Prosecution
Mr. M. Thangaraj S.C., with Mr. Iqbal Khan and Mr Warwick Korn for 1st Accused
Mr. Mark Anthony for 2nd Accused

Date of Hearing : 29th of March 2016 to 7th of April 2016
Date of Voir Dire Ruling : 8th of April 2016

RULING ON VOIR DIRE

1. The Prosecution proposed to adduce in evidence the two caution interviews of the first and second accused persons, for which the two accused persons objected. Both the accused person filed detailed grounds of their objections. Hence, a voir dire hearing was commenced on 29th of March 2016 and proceeded till 7th of April 2016. The prosecution called eight witnesses during the course of the hearing. The two accused persons opted to remain in silence, but called one witness for their defence. The learned counsel for the prosecution and the two accused persons then made their respective closing submissions. Having carefully considered the evidence presented during the course of the hearing and the respective submissions of the counsel, I now proceed to pronounce the ruling as follows.
   
2. Having carefully considered the detailed grounds of voir dire filed by the two accused persons, I could summarised that their objections are mainly founded on the grounds that the two accused were not properly given their rights prior to and during the recording of their respective caution interviews. Moreover, the two accused allege that they were not produced in court as reasonably soon as possible, infringing their rights stipulates under the Section 13 (f) of the Constitution. The accused persons further allege that the improper and adverse conducts of the investigation officer, the interviewing officers and witnessing officers in the two respective caution interviews have negatively affected the admissibility of the respective caution interview in evidence.
   
3. A suspect, who is in the police custody is not generally having an asymmetrical relationship with the police officers who conduct the investigation. The position of the suspect in police custody is hindered by the power, the authority, and the influence extracted by the police officers. Moreover, they inherently possessed with competitive interest.
   
4. Having understood the existence of such an asymmetrical relationship, the civilised society reluctant to accept any incriminating confessions made by the suspect in police custody as reliable and admissible evidence against the person who made it, unless it is proven that such confession was made voluntarily and under a fair and just circumstances. Hence, the main objective of the hearing of voir dire is to determine the admissibility of the caution interview of the accused person in evidence. The probative value of the statement if admitted in evidence, is still for the assessors to determine in the hearing. (G vs UK ( 9370/81, 35 DR 75).
   
5. In view of the inheritance infirmities and the objectionable nature of the confessions made by a suspect in police custody in evidence, a border and effective legal and judicial scrutinisation is required to determine whether the confession was obtained voluntarily and fairly without prejudicing the rights of the accused.
   
6. The Constitution of Fiji has provided a wider and comprehensible regime of rights for the detained and arrested persons as well as the accused persons in their litigations. Section 13 (d) of the Constitution has stipulated that no detained or arrested person could be compelled or forced to make any confession in order to use it in evidence. Section 13 (d) states that;
   

"Not to be compelled to make any confession or admission that could be used in evidence against that person".

7. Section 14 (k) of the Constitution has further stipulated that unlawfully obtained evidence could not be adduced against a person in court proceedings. Section 14 (k) states that;
   

" Not to have unlawfully obtained evidence adduced against him or her unless the interest of justice requires it to be admitted"

8. Lord Carswell in R v Musthaq ( 2005) All ER 885, at 908 has discussed the importance of adopting a cautionary and dynamic approach in admitting confessions of accused persons in evidence, where his Lordship found that;
   

"It has long been recognised that the content of a confession made by an accused person has to be evaluated with great care in order to determine whether it can safely be accepted as an admission against his interest. The approach of the law to that evaluation has varied over the years and the rules applied by the courts have to be kept under review to ensure that they reflect the standards accepted by each generation".

9. Lord Griffiths in Lam Chi-Ming and others v R ( 1991) 3 All ER 172) having discussed the recent developments in English cases found three main principles that constitute the objective of rejecting of an improperly obtained confession. His Lordship held that;
   

"Their lordships are of the view that the more recent English cases established that the rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviours by the police towards those in their custody. All three of these factors have combined to produce the rule of law applicable in Hong Kong as well as in England that a confession is not admissible in evidence unless the prosecution establish that it was voluntary".

10. Lord Griffiths' observation in Lam Chi-Ming ( supra) has further been elaborated by Lord Carswell in R v Mushtaq (supra), where his lordship held that;
    

"It has to be born in mind that a confession which has been properly obtained may nevertheless be untrue. The unhappy example of Judith Ward (R v Ward (1993) 2 All ER 577,) serves as a reminder of this. Conversely, if a confession had been obtained by means which the law condemns as improper, it is quite possible that it may nevertheless be true, a fact which would cause no surprise to anyone with experience of criminal practice. Improper compulsion creates a risk, however, that the confession may be untrue, and this makes it unsafe to rely upon it, and the more considerable the compulsion or oppression, the greater the risk that the confession is unreliable. One may add to this risk the two further factors which have influenced the law in rejecting confessions obtained by compulsion, the right against self-incrimination and the need to exercise a degree of controlling discipline over undesirable police practices".

11. Accordingly, it appears that the objective of rejecting of an improperly obtained confession is founded on three main principles, that are;
    
    1. Unreliability of the confession,
    2. Rights against self-incrimination,
    3. To prevent undesirable police conduct on the person in their custody.
       
12. Having understood the principle of rejection of improperly obtained confession, I now turn onto the issues of test of voluntariness. The Privy Council in Wong Kam –Ming v The Queen (1982) A.C. 247 at 261 has discussed the basic control over admissibility of statement, where it was held that;
    

"The basic controls over admissibility of statement are found in the evidential rule that an admission must be voluntary i.e. not obtained through violence, fear or prejudice, oppression, threats and promises or other improper inducements. See decision of Lord Summer in Ibrahim v R [1914] UKPC 16; (1914-15) AER 874 at 877. It is to the evidence that the court must turn for an answer to the voluntariness of the confessions."

13. The Fiji Court of Appeal in Shiu Charan v R (F.C.A. Crim. App. 46/83) has discussed the applicable test to determine the voluntariness of caution interview, where it was held that;
    

"First, it must be established affirmatively by the Crown beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as the use of force, threats or prejudice or inducement by offer of some advantage - what has been picturesquely described as "the flattery of hope or the tyranny of fear." Ibrahim v R (1914) AC 599. DPP v Pin Lin (1976) AC 574.

Secondly even if such voluntariness is established there is also need to consider whether the more general ground of unfairness exists in the way in which the police behaved, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. Regina v Sang [1979] UKHL 3; (1980) AC 402, 436 @ c - E." (State v Rokotuiwai - [1996] FJHC 159; Hac0009r.95s (21 November 1996).

14. It appears that the test enunciated in Shiu Charan (supra) constitutes two components. The first is the test of oppression. The court is required to satisfy that the statement in the caution interview had been taken without any form of force, threats, intimidation, or inducement by offer of any advantage. The second component is that, even though the court is satisfied that the statement was given voluntarily without any form of threat, force, intimidation or inducement, it is still required to satisfy that no any general grounds of unfairness existed before or during the recording of the caution interview.
    
15. Edmund Davies LJ in R v Prager ( 1972) 1 ALL ER 1114 has discussed the definition of " oppression" in an inclusive manner, where his Lordship held that;
    

The only reported judicial consideration of 'oppression' in the Judges' Rules of which we are aware is that of Sachs J in R v Priestley where he said:

'... to my mind, this word in the context of the principles under consideration imports something which tends to sap, and has sapped, that free will which must exist before a confession is voluntary ... Whether or not there is oppression in an individual case depends upon many elements. I am not going into all of them. They include such things as the length of time of any individual period of questioning, the length of time intervening between periods of questioning, whether the accused person has been given proper refreshment or not, and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid or an old man or somebody inexperienced in the ways of this world may turn out not to be oppressive when one finds that the accused person is of a tough character and an experienced man of the world.'

In an address to the Bentham Club in 1968d, Lord MacDermott described 'oppressive questioning' as—

'questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the suspect that his will crumbles and he speaks when otherwise he would have stayed silent.'

16. Accordingly, the court is required in a voir dir hearing to consider all the existing circumstances including the conduct of the parties in order to determine whether such circumstances and conduct has prejudicially affected the free will of the accused person in making his confession.
    
17. The burden is on the prosecution to prove beyond reasonable doubt that the confession in the caution interview was made voluntarily and without the existence of any form of general unfairness which do not render the caution interview inadmissible. (State v Rokotuiwai - [1996] FJHC 159; Hac0009r.95s (21 November 1996).
    
18. Having discussed the scope, the objectives and the applicable test in determining the admissibility of the caution interview in evidence, I now turn onto this instant case.
    
19. The first accused alleges that he was not given an opportunity to consult or contact the Australian High Commission before the commencement of his caution interview. The first accused is an Australian National. He is entitled to consult or communicate with the High Commission of Australia if he wishes, before the commencement of his caution interview. This opportunity will undoubtedly assist the accused, being a foreigner to obtain assistance and advice before he proceeds to his caution interview. The High Commission of Australia surely could assist the accused in contacting his family or friends in Australia or visa versa, this would probably provide him an opportunity to organise legal assistance if he wishes to obtain prior to the commencement of his caution interview. Therefore, providing an opportunity to a foreign suspect to contact or communicate with the embassy of his own country, is an internally connected rights of the suspect during the pre-charge detention in police custody.
    
20. Investigation officer I.P. Maciu stated in his evidence that he directed to an officer, who's name he could not recall to contact the High Commission of Australia. He could not recall the exact time and the date. However, he stated that it was the day after the accused was arrested. He admitted in his evidence that there is no entry made either in the station diary or crime diary about such direction to contact the Australian High Commission.
    
21. The Interviewing Officer, Cpl Shameem stated in his evidence that he did not give the accused person his right to contact the High Commission at the commencement of the caution interview. An officer from the High Commission has finally contacted the accused on the evening of 15th of July 2015. There is no specific evidence to establish whether the said officer actually contacted the accused on the request of the police or on the request of some other sources. In the absence of evidence to substantiate that the Investigation Officer has actually directed an officer to contact the High Commission and the admission of the Interviewing Officer that he did not actually give the accused his rights to contact the High Commission, I could conclude that the police has not given the first accused person an opportunity to contact the Australian High Commission before the commencement of the caution interview.
    
22. Both accused persons allege that they were kept in police detention for four days without producing in court. They contend that the failure to produce them as required under Section 13(f) of the Constitution would constitute an infringement of their constitutional rights as detained persons.
    
23. The accused persons were arrested in the evening of 13th of July 2014 and brought into the Lautoka Police Station on the same day. Their respective caution interviews were commenced on 14th and went on till the 15th of July and 17th of July respectively. The caution interview of the first accused person was concluded in the evening of 15th of July 2015. There was no investigation took place on 16th, apart from the charging of the first accused. The second accused was kept in idle during the whole day of 16th of July at police cell without any proper reason. The interviewing officer Sgt Elic stated in his evidence that he had to attend to a court matter in the Magistrate's court in Nadi, on 16th, therefore he had to suspend the continuation of the caution interview of second accused person on 16th. The caution interview of the second accused was concluded on the morning of 17th of July and he was then charged. Subsequently, the two accused persons were produced in court on the same day. In the meantime, the police had filed an ex- parte notice of motion in the Magistrate's court, on the 15th of July 2015, seeking an extension of the period of detention in police custody. The learned Magistrate had granted an order extending the period of detention in police custody as sought by the Police in that ex-parte notice of motion.
    
24. Section 13 (f) the Constitution states that;
    

"to be brought before a court as soon as reasonably possible, but in any case not later than 48 hours after the time of arrest, or if that is not reasonably possible, as soon as possible thereafter;

25. I do not wish to focus much on the legality of the order of the learned Magistrate in extending the period of detention of police custody as this hearing is not an appeal or a review of that order. However, I find that the Magistrate's court has no jurisdiction to make such order, extending the period of pre-charge detention of a suspect in police custody unless any corresponding legislation has specifically provided such jurisdiction to the Magistrate's court. I accordingly, find that the order of extending the period of detention of the two accused persons in police custody is wrong in law, thus invalid.
    
26. The investigation officer and the officers who involved in the respective caution interviews stated in their evidence that the reason for delaying the production of two accused persons in court was due to the continuation of the investigation. However, non of them failed to provide specific nature and the mode of such investigation that prevented them producing the two accused persons as required under Section 13(f) of the Constitution. If the continuation of the respective caution interviews were the reason for such delay, I find that the police had sufficient opportunity to conclude them and produce the two accused persons as early as possible in court. Had the police produced the two accused person as required under Section 13(f) of the Constitution, the accused person will have an opportunity to contact the judicial system and express their concern of the detention in police if they had any. Preventing the two accused persons to contact the judicial system as required under Section 13(f) of the Constitution without any valid and reasonable explanation, would undoubtedly amount to a breach of their constitutional rights as stipulated under Section 13 (f) of the Constitution.
    
27. I now turn onto the concluding stage of the caution interview of the first accused person. The first accused person alleges that he was not properly given time to read the recording of his caution interview before he signed it. The caution interview was suspended for twenty minutes at 16.50 hours as the accused broke down with emotion. It recommenced at 17.10 hours. The interviewing officer put eight questions including explaining him his rights and caution.
    
28. The caution interview was finally concluded at 17.32 hours. The witnessing officer in his evidence stated that apart from recording the said eight questions and answers, they have printed off the whole caution interview and gave the accused to read the whole of it. He then signed the whole of the interview, which was followed by the signatures of the witnessing officer and the interviewing officer. He stated that for all these activities had taken place within the time between 17.10 to 17.32 hours.
    
29. The Interviewing Officer in his evidence contradicted the version of Witnessing Officer. He stated that pages one (1) to twenty one (21) were printed off at the end of the first day. Those pages were given to the accused to read at the end of the first day. However, there is no such record in the caution interview stating that the printed pages of caution interview of the first day were given to the accused to read at the end of first day. The statement made by the Interviewing Officer states that after the completion of the interview, the accused read through the whole content of the interview and put his signature. The inconsistent nature of the evidence pertaining to the last stage of the caution interview of the first accused has created a reasonable doubt whether the first accused was actually given an opportunity to read the whole of the caution interview and make alterations or addition if he wishes at the end of the recording of his caution interview.
    
30. It was revealed during the hearing that the both caution interviews had been recorded in the personal lap tops of the respective interviewing officers. The witnessing officer of the first accused person stated in his evidence that the accused, investigation officer and himself put their respective signatures on the record after the question number three, before they proceeded to the question number four. Likewise three of them have put their signatures after the question number 6 and 12 respectively before they proceeded to the subsequent questions numbers of 7 and 13 in the caution interview.
    
31. However, the evidence of the investigation officer in this regard was inconsistence with the evidence of the witnessing officer. The question numbers three, six and twelve of the caution interview respectively required the signature of the accused person in order to confirm the acknowledgement of the first accused person that he has consented to be interviewed in English, to confirmed that he has properly understood the allegation and to confirm that he was given his rights respectively. However, the interviewing officer stated that the accused person actually did not put his signature at the relevant time of putting those respective questions. He has actually signed at the end of the first day of the caution interview. Interviewing Officer admitted that he and witnessing officer misled by putting their signatures in order to confirm that they had permission of the accused person to interview him in English Language after the question number three. Likewise he admitted that he had no written acknowledgement of the accused that he understood the allegation before he proceeded with the question number seven. He further admitted that he had no written acknowledgment from the accused person that the accused person has properly given his rights before he went further in his caution interview after the question number twelve.
    
32. The Interviewing Officer explained that the accused actually acknowledged those stages in his caution interview, though he subsequently put his signature at the conclusion of the first day. However, the contradictory nature of the version of the Witnessing Officer on this issue, has generated a reasonable doubt whether the first accused person has actually given his consent to be interviewed in English language and also he had actually acknowledged that he has properly understood the allegation and the nature of his caution before the interview proceeded further.
    
33. I.P. Maciu, in his evidence admitted that the first accused refused to have food provided by the police station during the period of his detention. He went on and stated that he used the money that were seized from the first accused to buy his food from outside. Ironically, Mr. Maciu, who was conducting this investigation has not recorded that he was given money belonging to the first accused by A.S.P. Naiko at any of the official records. He has not entered any entries in station diary to confirm his claim.
    
34. No official record could be found either in station diary or crime diary, stating that the first accused was given any food since he was arrested until the end of the first day of the caution interview. In view of the inconsistent nature of I.P. Macui's evidence and non-recording of important information of providing food to the first accused person, I am satisfied that there is a reasonable doubt whether the first accused person was provided his food properly and adequately during his detention period in the police custody.
    
35. The interviewing officer and the witnessing officer of the caution interview of the second accused person admitted that they were informed at the briefing that the second accused was arrested for the offence of found in possession of illicit drugs. However, the caution interview states that the second accused person was cautioned and informed that he was going to interview for an allegation of dealing and selling of illicit drugs. None of the officers who involved in the recording of the caution interview were able to provide any sufficient explanation for this inconsistency. Hence, it is my opinion that there is a reasonable doubt whether the second accused person was properly informed about the allegation that he was going to interview with proper cautions.
    
36. In view of the reasons discussed above, it appears that there is a reasonable doubt whether the circumstances that was prevailed during the recording of the two respective caution interviews of the two accused persons were fair and just. Hence, I find that the prosecution has failed to prove beyond reasonable doubt that the caution interviews of the first and second accused persons were recorded with their free will, voluntarily and under fair and just circumstances. I accordingly, hold that the two caution interviews of the first accused person and the second accused person are not admissible in evidence.
    

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
8 April 2016

Solicitors: Office of the Director of Public Prosecutions

Messrs Iqbal Khan and Associates for the First Accused person

Messrs Tuifagalele Legal for the Second Accused person