IN THE HIGH COURT OF FIJI
AT LABASA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO. HAC 47 OF 2017

BETWEEN:		THE STATE

AND:			1.	SHANIL KUMAR
2.	RAJENDRA MANI

Counsel:	Ms A Vavadakua for the State
		Ms N Karan for the 1st Accused 
		Mr R Vananalagi for the 2nd Accused

Date of Hearing:	  20 June 2018
Date of Ruling: 	  26 July 2018

RULING

[1]	The two accused are charged with rape. They seek to exclude their caution 	statements from evidence on the ground that the police extracted them using force. 	The caution statements are incriminating in nature and are contained in the respective 	Records of Interview of the accused. 

[2]	The first accused (Mr Kumar) objects to the admissibility on the following grounds:
	(i)	On 11 August 2017 he was arrested and was beaten at Labasa Police (sic) on 		12 August 2017 whilst he was in police custody.
	(ii)	The caution interview was taken whilst the accused person was in pain from 		the beating of the two police officers at Labasa Police Station.  The names of 		the officers are Vikash and Kamal.
	(iii)	That he was punched and kicked on his stomach, face and his fingers were 		pulled by two police officers named above at Labasa Police Station.
	(iv)	The accused person was in lot of pain in police custody due to injuries he had 		suffered.
	(v)	He was threatened by the police officers and he was scared for his life due to 		which 	admissions were made in caution interview.
	(vi)	That he reported police assault to the learned Magistrate in Labasa Court on 		14 August 2017.

[3]	The second accused (Mr Mani) objects to the admissibility on the following grounds: 
	(i)	The 2nd Accused when  arrested by the police was being threatened that he 		would 	be beaten if does not admit to the alleged offence.
	(ii)	The 2nd Accused when being transported to the police station was punched 		three  times  on  the  stomach  by  a  male police officer sitting on the front 		passenger seat who was part of the arresting team.
	(iii)	The 2nd Accused was being threatened at the police station by Officer WDC 		4877 Komal and the same male officer above during the caution interview to 		admit to the offence or will be beaten up.

[4]	The basic rule for the admissibility of an admission or a confession is that it must be 	made voluntarily i.e. not obtained through violence, fear of prejudice, oppression, 	threats and promises, or other improper inducements. (Ibrahim v R [1914-15] All E.R. 	874 at 877). A confession or an admission may also be excluded on the ground of 	unfairness (Wong Kam-Ming v The Queen [1980] A.C. 247, 261). The prosecution 	carries the burden to prove voluntariness or fairness beyond a reasonable doubt before 	a confession or an admission can be admitted into evidence.  

 [5]	At the voir dire, the prosecution led evidence from five witnesses.
[6]	The first witness was the arresting officer, Cpl Alipate.  It is not in dispute that the 	two accused were  arrested from their respective homes  at Namara in the morning 	of 11 August 2017. Both accused were advised of the reasons for their arrests. Both 	were brought to Labasa Police Station in the same police vehicle. The driver was PC 	Harinam. Both accused sat at the back passenger seat. Cpl Alipate sat in the front 	passenger seat. The journey from their homes to the police station took about 10 	minutes. When they arrived at the station, Cpl Alipate handed the two suspects to the 	station orderly. He did not have any other role in the case. Cpl Alipate’s evidence is 	that the two suspects cooperated during the arrest and that he did not threaten or 	assault Mr Mani as alleged by him. 

[7]	The second witness was WPC Komal. She interviewed Mr Mani under caution at the 	station. Mr Mani elected to be interviewed in Hindi language. The interview was 	recorded  in Hindi language and then translated into English language. The 	interview commenced on 11 August 2017 at 12.20 pm and was concluded the 	following day at 12.50 pm. Apart from the interview being suspended overnight on 11 	August 2017 for the suspect to rest, the interview was suspended on intervals to give 	the suspect breaks.  Meals were also  provided during  the breaks.  WPC Komal in her 	evidence said that Mr Mani cooperated during the interview and made incriminating 	statements. She did not make any threats to Mr Mani during his interview.

[8]	The third witness was PC Kamal. PC Kamal drove Mr Mani for a reconstruction of 	scene at Namara Squatter Settlement on 12 August 2017 accompanied by WDC 	Sadamma.  After reconstruction he returned to the police station and had no further 	role in the case. According to PC Kamal he did know the first accused (Mr Kumar) 	and that he was not present during the interview of the suspect. He denied pulling Mr 	Kumar’s fingers backward or punching him in the stomach during the interview. 

[9]	The fourth witness was WPC Sadamma. She was the investigating officer. She also 	interviewed the first accused (Mr Kumar) under caution. The suspect chose to give his 	statement in English language. The interview commenced on 11 August 2017 at 2.10 	pm and was suspended overnight to allow the suspect to rest. The interview 	recommenced on 12 August 2017 at 10 am and was concluded at 3.35 pm. Meals and 	breaks were given in between the interview. Both WPC Sadamma and the suspect 	signed the record of interview.  According to WPC Sadamma no one else was present 	when she interviewed the suspect and that she did not threaten or assault the suspect 	or allowed any other police officer to assault the suspect during the interview as 	alleged by him. After the interview was concluded, the suspect was charged and 	produced in court.  She did not have any further role in the case after the suspect 	was 	produced in court. 

[10]	The fifth witness was PC Naiker. PC Naiker was part of the police escorting team that 	went for the reconstruction of scene on 12 August 2017. He was not present during 	any interview of the suspect. According to PC Naiker he did not assault the first 	accused (Mr Kumar) during his caution interview or the second accused (Mr Mani) 	during the scene visit as alleged by them. 

[11]	Both accused elected to give evidence. In addition, the first accused’s mother gave 	evidence for the defence.
 
[12]	Mr Kumar’s evidence is that he was assaulted by PC Kamal and PC Naiker during his 	interview at around 11.30 am on 12 August 2017. Mr Kumar said that he did not give 	his police statement out of his own free will. He said that the two police officers 	twisted his fingers by pulling them backwards and also punched him in the stomach 	several times. He said that his fingers were swollen and that he had stomach pains for 	two weeks. Later on the same day when his mother came to visit him at the station, 	he complained to his mother.  When  he  was  produced  in the Magistrates’ Court,	he complained to the Magistrate. 

[13]	Mr Kumar’s mother, Roshni Devi said that when she visited her son at the station a 	day after his arrest, she saw his hands were swollen and that he complained to her that 	the police had assaulted him. 

[14]	Mr Mani’s evidence is that when he was arrested on 11 August 2017, the police did 	not do anything to him. During his interview, WPC Komal threatened him that if he 	did not confess they will assault him. While he was on his way for the scene visit on 	12 August 2017, officer Vikash (referring to PC Naiker) threatened and punched him 	in the stomach while they were inside the police vehicle. 

[15]	Clearly, there are two different versions. Both accused in their evidence have said that 	they were threatened and assaulted by the police officers. The police officers deny the 	allegations of threats and assault. 

[16]	Mr Kumar’s evidence is that he was assaulted at around 11 am on 12 August 2017. 	According to his record of interview, the interview commenced on 11 August 2017 	and by the time the interview was suspended at 4.30pm, Mr Kumar made an 	admission that he had sexual intercourse with the complainant but he thought she was 	18 years old due to her built.  The following day the interview commenced at 10 am 	and was suspended at 10.50 am for the scene visit. If Mr Kumar’s evidence is true 	then he was assaulted after he had made the admissions. In other words, the 	admissions were not extracted using fear or violence. Further, it makes no sense for 	the police to assault him when he had already made admissions and also offered an 	explanation for his conduct. I do not believe the evidence of Mr Kumar and his 	mother. 

[17]	Mr Mani’s first two grounds cannot be sustained on his own evidence. He said that he 	was not assaulted by the arresting team. He was threatened during the interview at the 	station and assaulted inside the police vehicle when he was taken for the scene visit 	the following day. However, I note that by the time Mr Mani was taken for the scene 	visit he had already made admissions in his record of interview. It makes no sense for 	the police to assault him when he had already made the admissions and was 	cooperating with the police. 

[18]	On the question of whether the two accused persons were assaulted as alleged by 	them, I believe the evidence of the police officers that they did not threaten, 	assault or act unfairly to extract admissions out of the suspects. I am satisfied 	beyond a reasonable doubt that both accused gave their police statements freely and 	voluntarily and without threats, force and unfairness. 

[19]	The caution statements of both accused are admissible. 

							…………………………….. …….
							Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for State
Pacifica Barrister & Solicitor for 1st Accused
R Vananalagi & Associates for 2nd Accused