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State v Isoof [2021] FJHC 407; HAC161.2019 (29 December 2021)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Crim. Case No: HAC 161 of 2019

STATE

vs.

MUHAMMAD RAHEESH ISOOF

Counsel: Mr S. Babitu with Ms Lata and Mr Tuenuku for the State
Mr I. Khan for the Accused

Date of Hearing: 23^rd December 2021
Date of Ruling: 29^th December 2021

VOIR DIRE RULING

1. The Prosecution proposed to adduce the DNA report in respect of certain items that the investigators have found at the crime scene in evidence, for which the accused objected, challenging the admissibility of the DNA report in evidence. The objections of the accused are founded on the following grounds, inter alia;
   
   1. That no informed Consent was obtained from the Accused on the 31^st August, 2019.
      
   2. That if it is proved beyond reasonable doubt that consent was obtained, then the defence states that the consent was obtained unfairly, and in breach of the Constitutional Rights of the Accused bestowed to him under the Constitution of the Republic of Fiji Islands 2013.
   100. That both (1) and (2) are proved beyond reasonable doubt, the Defence state that the prejudicial value outweighs the probative value of the DNA Analysis Report and ought not to be admitted as evidence.
        
   4. That the Accused reserves its rights to add/alter and amend further grounds subject to receiving further disclosures on new instructions.
2. The trial within a trial (voir dire) was commenced on the 23rd of December 2021 and concluded on the same day. The Prosecution presented the evidence of four witnesses, and the accused gave evidence for the Defence. Subsequently, the learned counsel for the Prosecution and the Defence filed their respective written submissions. Having carefully considered the evidence presented in the hearing and the respective written submissions of the parties, I now proceed to pronounce the ruling as follows.
3. Section 14 (2) (a) of the Constitution of Fiji recognises that every person charged withffence has a right to be presumed innocent until he is prov proven guilty according to the law, thus recognising the right against self-incrimination. The right against self-incrimination recognises that a person cannot be forced to make evidence against himself. It does not limit only the oral admissions and confessions but extends to any evidence that the Accused forced to make. The right against self-incrimination imposes limits on the extent to which an accused person can be used as a source of information about his or her criminal conduct. ( vide : R. v. S.A.B., 2003 SCC 60 (CanLII), [2003] 2 SCR 678).
4. Deoxyribonucleic Acid, commonly known as DNA, is a genelueprint of the human body. When a criminal leaves a stain of blood, any bodily marks or seor semen at the crime scene, it may be possible to extract from the stain sufficient DNA of the criminal, which later can be compared with the DNA samples obtained from the Suspect. It is a scientific procedure of comparing DNA obtained from the crime scene with the Suspect's DNA. DNA evidence emerged as reliable scientific evidence in the mid-1980s and gained its popularity and the confidence of its accuracy in the 1990s. Fiji is now slowly embracing DNA testing and evidence in criminal trials. ( vide; State v Vakadranu [2019] FJHC 152; HAC276.2016 (5 March 2019)).
5. The bodily samples obtained from the Accused are being used to compare with the DNA sample found at the crime scene. If the samples match, they could be used in evidence to incriminate the Accused to the alleged crime. Likewise, if the samples do not match, it has a significant potential of exonerating the Suspect from the alleged crime. Hence, the Accused is taking part in providing his bodily samples to create the DNA evidence, which could be potentially used as incriminatory evidence against him. Unless the Accused contributes in providing his bodily sample to compare his DNA with the DNA samples found at the crime scene, the State or the Investigators are not in a position to construct the DNA evidence. Hence, the accused is actively taking part in constructing the evidence of DNA which could be used in evidence against the interest of the accused.
tyle='text-indent:0ptt:0pt; margin-top:0pt; margin-bottom:0pt;' value='6' value="6">In view of the reasons discussed, it is clear that the DNA evidence comes w the meaning of right against self-incrimination. An oral oral or written confession or admission is a product of the mind, which would not exist unless it is communicated through spoken words or written letters. Hence, the confessions and admissions are generated through words and written letters.
7. However, bodily substances are already existing in the human body. The Police or the Crime Investigators need to access to match them with the DNA sDNA samples found at the crime scene. The human body is the outward manifestation of the human. A human considers his/ her body as his/ her own self, which is uniquely essential for him. This is called the bodily autonomy of the human. Chief Justice Mishra in Navtej Singh Johar & Ors v Union of India Ther, Secretary Ministry of Law and Justice ( Writ Petition ( Criminal) No 76 of 2016, India: Supreme Court, 6 September 2012) found that under this autonomy principle, every individual has sovereignty over his/her body. Having outlined that, Chief Justice Mishra had gone further explaining the significant nature of the bodily autonomy of a person, where his lordship held that;

“He/she can surrender his/her autonomy willfully to another individual and it is a matter of their choice. Such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person‘s nature. The autonomy establishes identity and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual. This dignity is special to the man/woman who has a right to enjoy his/her life as per the constitutional norms and should not be allowed to wither and perish like a mushroom”

8. Accordingly, bodily autonomy forms the person's identity, which eventually becomes an integral part of the dignity of the person. The Preamble of the Constitution states that the people of Fiji are committed to recognising and protecting human rights and respecting human dignity ( vide; Preamble of the Constitution of Fiji ). The Preamble is founded on two important Constitutional Doctrines: the Doctrine of Progressive Realisation of Rights and Constitutional Morality.
style='text-indent:0ptt:0pt; margin-top:0pt; margin-bottom:0pt;' value='9' value="9">The doctrine of progressive realisation of rights leads to the principle o-retrogression. It means there is no regression of rights, hts, and society should move ahead with the realisation of the rights stipulated under the Constitution. Chief Justice Mishra in Navtej Singh Johar (supra) held that the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise. Constitutional morality is the soul of the Constitution, which is stated in the Preamble of the Constitution, declaring that the people of Fiji are committed to recognising and protecting Human Rights and respecting Human Dignity. Accordingly, the rights expounded in the Constitution must be understood, interpreted and applied within the context of the said commitment.
10. Section 27 of the Constitution states that every person has the right to personal privacy, including the confidentiality of their personal information, communication, and respect for their private and family life. However, the law could limit these rights if it is necessary.
11. Section 11 of the Constitution has recognised that every peras a right to freedom from cruel and degrading treatment, including the right to freedom from from scientific or medical treatment or procedures without an order of the court or the person's informed consent.
12. Section 12 of the Constitution deals with freedom from unreasonable search and sei Section 12 of the Constitution stipulates that:
    1. Every person has the right to be secure against unreasonable search of his or her person or property and against unreasonable seizure of his or her property.
    2. Search or seizure is not permissible otherwise than under the authority of the law.
13. Accordingly, the Constitution has recognised bodily autonomy, bodily identity and human dignity by recognising the right of privacy, right to freedom from cruel and degrading treatment and right to be secure against unreasonable search and seizure.
Bodily samples and parts are within the domain of the personal autonomy of a person, which is an integomponent of his identity anty and dignity. Such bodily samples fall within the meaning of property as stipulated under Section 12 (1) of the Constitution. Hence, any unlawful and uninvited invasion of bodily autonomy to extract or collect any bodily sample would indeed amount to a breach of a person's constitutional rights.
15. In R v Stillman (1997) 1 S.C.R.607), the Canadian Supreme Court discussed Sectiof the Canadian Charter of Rights and Freedoms, which statestates that;" Everyone has the right to be secure against unreasonable search or seizure." and held that;

“It is repugnant to fair-minded men and women to think that police can without consent or statutory authority take or require an accused to provide parts of their body or bodily substances in orderncriminate themselves. The The recognition of the right to bodily integrity and sanctity is embodied in s 7 of the Charter which confirms the right to life, liberty and the security of the person and guarantees the equally important reciprocal right not to be deprived of security of the person except in accordance with the principles of fundamental justice. This right requires that any interference with or intrusion upon the human body can only be undertaken in accordance with principles of fundamental justice. Generally that will require valid statutory authority or the consent of the individual to the particular bodily intrusion or interference required for the purpose of the particular procedure the police wish to undertake. It follows that the compelled use of the body or the compelled provision of bodily substances in breach of a charter right for purposes of self-incrimination will generally result in an unfair trial just as surely as the compelled or conscripted self- incriminating statement.”

16. In view of the above-discussed reasons, I find the above statement in Stillman ( supra) is relevant and provides persuasive guidance to understand the evidential nature of obtaining the bodily sample of a person and the manner it should be obtained.
17. The Prosecution and the Defence, in their respective written submissions, referred to State v Rokobulou [2020] FJHC 1038; HAC063.2018 (5 November 2020), where Perera J had stated that Stillman ( supra) had been reviewed and revised by the Canadian Supreme Court in R v Grant&[2009 S.C.CS.C.C. 32; (2009) 2 S.C.R. 353]. In fact, Grant (supra) has only reviewed and revised the test adopted by Stillman to exclude the evidobtained in breach of the rights stipulated under the CanadCanadian Charter of Rights and Freedom pursuant to Section 24 (2) of the Charter. It has not revised the statement of Stillman that the evidence of DNA comes within the meaning of right against self-incrimination. Grant ( supra) had found the test adopted by Stillman to determine the admissibility solely based on the conscriptive nature of the evidence would limit the scope of Section 24(2) of the Charter.
18. In view of Section 24 (2) of the Canadian Charter of Rights and Freedom, neither the Stillman test nor the Grant test is relevant in Fiji. According to Section 24(2) of the Charter, any evidence obtained in breach of the rights guaranteed by the Charter will be excluded if it is established that having regard to all the circumstances, the admission of such evidence would bring the administration of justice into disrepute. Accordingly, admission of such evidence is the default position in Canada, while the exclusion is the exception on the ground of bringing the administration of justice into disrepute. However, Section 14 (2) (k) of the Constitution of Fiji has stated that;

“Every person charged with an offence has the right not to have unlawfully obtained evidence adduced against him or her unless the interests of justice require it to be admitted;

19. Accordingly, excluding the evidence obtained in breach of Rights guaranteed under the Constitution is the default position in Fiji. Inclusion is the exception based on the interest of justice. In doing that, the Court should not only consider the balance between the prejudicial impact on the Accused with the probative value of the evidence obtained unlawfully. The interest of justice should be determined within the framework of Constitutional morality embodied in the Constitution, which is the commitment to recognise and protect Human Rights and respect Human Dignity. Within that framework, the Court should balance the rights and the protection of society on the one hand and the protection of individual rights on the other. Both rights are equally important, but any conclusion between those rights must be determined in a manner most compatible with the principle of human dignity. ( vide: Re Laport The Queen (160; (1972), 1972 CanLII 1209 (QC CS), 29 D.L.R. (3d) 651 (Que. Q.B.).
20. Accordingly, the Police or the investigators of a crime are only allowed to obtain bodily samples or parts of a person with the informed consent of the said person or any lawfully obtained order. There is no law enacted in this jurisdiction empowering the Police to obtain DNA samples of the suspect without considering his consent. However, Sections 11 (3), 12 (2) and 24 (2) of the Constitution have stated that lawfully made orders could limit the rights stipulated under those sections. Since the issue of this hearing is whether the Accused had given his informed consent to the Police to obtain his buccal sample, I will leave the issue of obtaining a court order to obtain bodily sample to be appropriately determined in future application to the Court.
21. The collection of the bodily sample comes under Section 12 of the Constitution since it amounts to a search and seizu a bodily property of a pera person. Using of the bodily sample of a person for DNA profiling is a scientific procedure; hence it falls under the purview of Section 11 (3) of the Constitution ( vide: State v Singh [2008] FJHC 202; HAM060.2008 (5 September 2008)). Accordingly, the consent for DNA testing is twofold. The consent to collecting bodily samples and then the consent to use those samples in the scientific procedure of DNA profiling.
22. The consent required from the suspect to obtain his bodily sample for DNA testing is informed nt. It means that the suspect must have the knowledge and tand the capacity to make that choice freely and without any form of force. The suspect must be informed of the nature, the purpose and the consequences of the DNA testing, more importantly, that the result of the DNA testing could be used in evidence against him in the trial. Such knowledge would enable the suspect to correctly and clearly understand the nature, purpose and consequences of giving his bodily sample for the DNA testing. He should not be pressured, forced or threatened and make any form of promise for in obtaining his bodily samples.
23. The prosecution provided evidence to establish that the accused came to the Crimes Office of Namaka Police Station of his own free will on 31 August 2019. He was released from the Police Custody by the High Court on 27 August 2019. Sgt Anil Kumar, the Investigation Officer, was instructed by the Divisional Crime Officer to contact the Accused and obtain his consent for DNA testing. Accordingly, Sgt Anil Kumar has contacted the Accused on the mobile phone number that the accused had given to him. The defence vigorously cross-examined Sgt Anil, suggesting that the Accused’s mobile phone was in Police Custody; hence there was no mobile phone to contact the accused. Sgt Anil explained that the Accused had given him a mobile phone number to contact him for the investigation. It is a practice that the law enforcement authorities, such as the Court Registries and Police, usually obtain the alternative contact details of the suspects when they are released from custody. Sgt Anil had no record of the phone number, but he was straight and affirmative in confirming that he contacted the accused on the contact details given by the Accused himself.
24. According to the prosecution witnesses, there are no entries in the Station Diaries or Crime Diaries regarding the collection of buccal samples of the Accused on 31 August 2019. The main issue in this matter is determining whether the Accused had given his informed consent to the Police to collect his buccal sample for the DNA testing. The internal Standing Orders and Circulars of the Police have provided guidelines for a better, transparent, efficient, and impartial investigation. However, those standing orders and circulars are not laws. Hence, the failure to follow those Standing Orders and Circular may create certain doubts about the integrity of the process, but not necessarily require to establish that the informed consent of the accused was obtained.
25. Sgt Anil Kumar provided his notebook entries regarding the collection of buccal samples of the Accused. He explained there is anges or editing but only tnly the rewriting of the year 2019 on his notebook entry. According to Sgt Anil Kumar, the Accused had agreed to provide his buccal sample for the DNA when explained and asked for it. He then came to the Crime office of Namaka Police Station of his own free will. Sgt Anil Kumar then contacted the Head of the Crime Scene Investigation Unite, IP Jitoko, asking him to arrange an officer to collect the buccal sample of the Accused. IP Jitoko was in the Nausori Highland attending the crime scene investigation. However, he had contacted WDC IIisapeci, asking her to attend to the collection of buccal samples of the Accused. The evidence of IP Jitoko supports the evidence of Sgt Anil that he contacted IP Jitoko to arrange the collection of buccal samples of the Accused.
26. WDC Ilisapeci, in her evidence, stated that IP Jitoko instructed her to go to Namaka Police Station to collect the buccal sample ofAccused on 31 August 2019. 019. She had gone to the Crime Office of Namaka Police Station and waited for the Accused. Sgt Anil Kumar came with the Accused. He then introduced the accused. She then explained to the accused the reasons of collecting the buccal sample and the purpose of the DNA testing. WDC Ilisapeci had then provided the Consent Form for Reference DNA Collection and explained to the accused about the Form. The accused then voluntarily filled the relevant portion of the Form and put his signature. The accused freely and willingly provided his buccal sample.
27. According to WDC Ilisapeci, the Accused had come to the Police Station with his wife. The wife was present with Accused when she obtained the buccal sample of the accused. However, DC Arunesh Kumar stated that the accused came alone and his wife did not accompany him. Moreover, though Sgt Anil did not expressly state that the accused came without his wife, his evidence only revealed that the Accused came to the Police Station of his own free will. Accordingly, there is a contradiction, thus creating an issue whether WDC Ilisapeci is a reliable and truthful witness.
tyle='text-indent:0ptt:0pt; margin-top:0pt; margin-bottom:0pt;' value='28' value="28">In Chandra v State [2015] FJSC 32; CAV21.2015 (10 December 2015), the Supreme Court of Fiji has discussed the principle of e of “divisibility of credibility”, where Dep JA held that;

“In the past, the courts applied the maxim 'Falses in Uno Falses in Omnibus' - meaning "He who speaks falsely in one point will speak falsely upon all" - to a witness who gives false evidence. The present trend is instead of rejecting the totality of evidence, to act on that part of evidence which is true and reliable. This approach is known as divisty ofb> of credibility&# 221;