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Safiq v State [2001] FJLawRp 23; [2001] 1 FLR 112 (7 March 2001)

DAVID SAFIQ, KELEPI LEDUA & JOSATEKI CAMA v STATE

High Court Criminal Appellate Jurisdiction

Being found by night in possession of house breaking implements – appeal against conviction and sentence - whether the caution interview was inadmissible on the ground of oppression, fear and voluntariness – whether failure of magistrate to address voluntarines of confession fatal - is knowledge necessary for "possession" under section 303(b) of the Penal Code – whether cross-examination of Accused's bad character allowed - Penal Code s303(b)(i); Criminal Procedure Code s145(f)

Three of the four prisoners, jointly charged, appealed against their convictions and sentence, on the grounds that their confessional statements were obtained by force and threats and should not have been admitted in evidence; that the magistrate failed to allow the Appellants to elect High Court trial; that the magistrate failed to properly consider the evidence of the Appellants and the defence witness; that the magistrate erred in allowing the prosecution to lead evidence of the bad character of the accused; and that the sentences were harsh and excessive. The appellate Court found that the magistrate had failed to assess the admissibility of the confessional statements in a two step process. The Court dismissed the ground of failure to elect a High Court trial as s303(b) is not an electable offence. The Court found that the prosecution had failed to lead evidence of possession of implements in the vehicle, from which a defence of lawful excuse could be made. Where the fourth Accused alleged that he was forced to sign his statement, and that the police officers were liars, the prosecution were allowed to lead evidence of his bad character and previous convictions. Although the fourth Appellant did not appeal, his conviction and sentence was also quashed.

Held–(1) A denial or imputation of lying is not enough to invoke cross-examination on bad character, the accused must allege malpractice or police impropriety. To that extent, cross-examination on previous convictions was properly allowed, although in the interests of fairness the learned Magistrate ought to have warned the accused.

(2) Although failure to give unrepresented accuseds a warning that they were exposing themselves to the risk of such cross-examination on bad character is not fatal to a conviction a warning is important where the Accused is unrepresented for the overall fair conduct of the case. But a failure to consider and apply the principles of the admissibility of the confessions of all the Appellants, is fatal to the outcome of the case.

(3) A failure by the Magistrate to consider the evidence against Second and Fourth Accused who at the trial denied knowledge of implements in the vehicle led to a finding which cannot be justified in law where the Prosecution led no admissible evidence from which possession could be imputed, against the Second and Fourth Accused. The issue of 'lawful excuse', which is a matter for the accused to prove, only arises after the prosecution has proved 'possession'.

Appeal succeeds. Convictions and sentences quashed. No retrial.

Cases referred to in Judgment
Callis v Gunn (1964) 1 QB 495
R v Benson 3 Cr.App.R. 70
R v Desmond (1999) Crim LR 313
R v Grout 3 Cr App R 64
R v Gunewardene (1951) 35 Cr App R 80
R v Jones (W) 17 Cr App R 117
R v Lewis (G) 87 Cr App R 270
R v Owen 83 Cr App R
R v Tanner 66 Cr App R 56
Selvev v DPP (1970) AC 304

Appellants in person
Anselm Herman for the Respondent

Shameem, J

On the 24th of October 2000, the three Appellants were found guilty in the Suva Magistrate's Court of the offence of Being Found by Night in Possession of Housebreaking Implements, contrary to section 303(b) of the Penal Code. The charge read as follows:

Statement of Offence

BEING FOUND BY NIGHT IN POSSESSION OF HOUSE BREAKING IMPLEMENTS: contrary to section 303 (b) of the Penal Code, Act 17.

Particulars of Offence

DAVID SHAFIQ s/o DAVID SHAFIQ, KELEPI LEDUA, JOSATEKI and SIKELI TAMANI on the 18th day of March 1999 at Navua in the Central Division by night having in possession, without lawful excuse, house breaking implements namely bolt cutter, one pinch bar, two screw drivers, two balaclavas and a pair hand gloves.

On 8th November 2000, the Appellants were sentenced to three years imprisonment. The fourth accused, Sikeli Tamani, who is not an Appellant, was sentenced to four years imprisonment, on the ground that he had two previous convictions under section 303(b) of the Penal Code. This heavier sentence is in accordance with section 303(b)(i) of the Penal Code, which provides for heavier sentencing powers where the accused has previous convictions for the same offence.

The grounds of appeal in the case of the three Appellants were substantially the same, and can be summarised as follows:

1. The confessional statements should not have been admitted in evidence because they were obtained by force and threats;

2. The Learned Magistrate failed to allow the Appellants to elect High Court trial;

3. The Learned Magistrate failed to properly consider the evidence of the Appellants and the Defence witness;

4. The Learned Magistrate erred in allowing the prosecution to lead evidence of the bad character of the accused;

5. The sentences were harsh and excessive.

The facts of the case, as presented by the prosecution at the trial, were that on the 18th of March 1999, Special Constable 802 Aporosa, and Corporal 289 Naidu on patrol in the Navua area, found a blue mini-bus parked beside Naitonitoni beach. The driver was asleep, and one person, identified as the 3rd Appellant, was standing outside the vehicle, hiding his face from the police. A person identified as the 1st Appellant was sitting in the second last seat. The police officers questioned the 3rd Appellant, and noticed that he was trying to conceal something underneath the mini-bus. They discovered that it was a bolt cutter. The vehicle was then seized and the 1st and 3rd Appellants were taken to the Navua Police Station. The 3rd Appellant escaped as the mini-bus was being reveled. On search, the mini-bus was found to obtain all the implements referred to in the charge.

The 1st Appellant was questioned at the Station. The 2nd, 3rd Appellants and the 4th Accused were found in the bush at Lobau. PW4 Corporal Iliesa Bolabiu, said that when he found them, they were so weak, they had to be helped back to the village and to Navua Police Station.

In his interview, the 1st Appellant said that he knew that the implements would be used to break open a container in Navua. The 2nd Appellant denied any knowledge of the implements in the van, and said that he thought that they were going to look for marijuana. The 3rd Appellant said he had boarded the van at Nabua when he was told by the 1st Appellant that he had "a job" to do for him. He said he knew nothing of the implements in the car.

The 4th accused at the trial said in his interview that he had boarded the mini-bus to look for marijuana, and that he knew nothing of the implements found in the van.

All accused were arrested and charged with the section 303(b) offence.

Ground 1

All the Appellants alleged police brutality, either in their cross-examination of the police witnesses, or in their sworn evidence.

The Learned Magistrate after summarising the prosecution case, said:

"In their sworn evidence all 4 Defendants denied knowing anything. Accused 1 said he was forced by the police to say what he did in his interview. Having listened very carefully to all Prosecution witnesses and to the sworn evidence of all four Defendants, and, after observing the demeanour of all witnesses very closely in court both from prosecution and from the Defendants, I have to say, I found the Prosecution witnesses evidence more believable then the story given by all four Defendants."

There is no reference in the judgment to the test of the admissibility of caution statements to the police, or of the burden of proof on the prosecution to show voluntariness. Did the Learned Magistrate direct her mind to these principles of law and evidence?

The evidence, on the prosecution version of events, was that the 1st Appellant was arrested on 18th March 1999 in the early hours of the morning. He was held in custody until 11.15am on the 19th of March, more than thirty hours later. PC 541 Umesh Raj did not explain the delay, nor did he give any details of the circumstances of the detention.

The 2nd Appellant did not cross-examine PC 2168 Nacani Bolabiu, the officer who interviewed him. However the prosecution witnesses themselves, said that the 2nd, 3rd and 4th accused were tired and weak after their sojourn in the bush. PC Nacani was unable to say whether they had been fed before their interviews. The 4th accused asked him in cross-examination:

"Q: Since we were tired and wanted to eat why weren't we given time to rest and eat since we were tired?

A: I was only instructed to conduct interview."

What was the effect of police conduct on the interview? Did the learned Magistrate consider this, even on the prosecution version of the case? We do not know because she made no reference to the test for the admissibility of caution statements.

As Lord Lane CJ said in Rennie v R (1982) 1 WLR 64 at pp 69-70:

"The law is as stated by Lord Sumner in Ibrahim v The King (19T4) AC 599), the 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' or, (as must now be added) by oppression."

Lord Parker CJ in Callis –v- Gunn (1964) 1 QB 495, at p.501 said:

"(It is) a fundamental principle of law that no answer to a question and no statement is admissible unless it is shown by the prosecution not to have been obtained in an oppressive manner and to have been voluntary in the sense that it has not been obtained by threats or inducements."

The burden was on the prosecution to disprove oppression. The evidence led by the prosecution, showed, prima facie, circumstances which might lead a court to decide that the interview was inadmissible on the ground of oppression.

However, the Learned Magistrate's failure to refer to the legal test of admissibility, raises a real doubt as to whether oppression, fear and voluntariness were considered at all.

The test for admissibility of confessions is applied in the High Court after a trial within a trial. The Magistrate who has to consider both admissibility and weight together must adopt a two-step process on confessions. He or she must first ask: Is this confession admissible? In considering this question, the Magistrate must direct himself/herself on the burden and standard of proof on the admissibility of confessions.

The second step is whether, if the Magistrate is satisfied beyond reasonable doubt, that the confession was a voluntary one, and not obtained by oppression, the contents of the interview are true and can be relied on for the purpose of the trial.

a failure to consider the principles of admissibility, is fatal to the outcome of the case. I find, that the Learned Magistrate failed to consider voluntariness and oppression, and failed to apply the principles of the admissibility of the confessions of all the Appellants. Ground 1 is therefore upheld.

Ground 2

This ground can be dismissed quickly. Section 303(b) is not an electable offence. The accused had no right to withdraw consent to trial by Magistrate. This ground is dismissed.

Ground 3

This ground alleges failure to consider the Defence case. On a reading of the judgment, it is not clear what the Defence case was in the case of each Appellant. Nor is it apparent that the Learned Magistrate considered the case against each accused separately.

The evidence of PW2 Corporal Naidu, is that he saw the 1st and 2nd Appellants in the vehicle which contained the implements. He did not see the 3rd and 4th accused. PW1 on the other hand saw only the 1st and 3rd accused. The 1st accused was taken to the station and the 3rd accused ran away. Under cross-examination by the 2nd accused, PW1 said that the 2nd accused was not in the van, but that the 1st accused had later implicated him on being interviewed by the police.

PW's evidence was confirmed by PW3, PC Rajend Nair who said that apart from the driver, only the 1st and 3rd accused were in the van.

Under caution, the 1st accused admitted that the implements were his, and admitted that they were to be used to unlawfully open a container.

The 2nd Appellant in his statement, admitted to being in the van but said that he thought they were looking for marijuana. He said he knew nothing of the tools.
The 3rd Appellant admitted to going to do a "job" but said he did not know that there were tools inside the van.

The 4th accused said he met the 2nd and 3rd Appellants in Navua on the night of the 17th of March, and said he was in the van but got dropped off at Navua Bridge. He said he later found the 2nd and 3rd Appellants hiding in the bush.

The direct evidence of involvement implicated the 1st accused and the 3rd accused only. Assuming that PW2 was mistaken when he said he saw the 2nd accused in the van at Naitonitoni, the only other evidence implicating the 2nd and 4th accused, came (by implication from the interviews of the accused. Those parts of the interviews were clearly not admissible against anyone other than the maker (see R v Gunewardene (1951) 35 Cr. App. R. 80).

The 2nd and 4th accused only admitted to being in the van. They did not admit to knowledge of the implements. Is knowledge necessary for "possession" under section 303(b) of the Penal Code?

The words "in possession" has been defined in cases in other jurisdictions as meaning knowledge and some control over the article. In R v Lewis (G) 87 Cr. App. R. 270, the English Court of Appeal said that a person is in possession of something when he has knowledge of its presence and some control over it; but he would not have possession unless he either knew, or the circumstances were such that he had the opportunity, whether he availed himself of it or not, to discover in a general way what the items were.

The 2nd and 4th accused at the trial denied even knowledge of the implements in the vehicle. The learned Magistrate failed to consider the evidence against them in this respect. This failure led to a finding which cannot be justified in law. The prosecution led no admissible evidence from which possession could be imputed, against the 2nd and 4th accused. The issue of "lawful excuse", which is a matter for the accused to prove, only arises after the prosecution has proved "possession". This ground of appeal succeeds.

Ground 4

The Learned Magistrate allowed the prosecution to cross-examine the 1st, 3rd and 4th accused on their previous convictions.

State Counsel submits that they put their character in issue when they suggested that the police witnesses were "liars".

Section 145(f) of the Criminal Procedure Code provides:

"a person charged and called as a witness in pursuance of this section shall not be asked, and, if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless –

(i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or

(ii) he has personally or by his barrister and solicitor asked questions of the witness for the prosecution with a view to establishing his own good character, or has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the complainant or the witnesses for the prosecution; or

(iii) he has given evidence against any other person charged with the same offence."

Did the accused cast imputations on the character or the prosecution witnesses?

Section 145(f) is identical to the English Section l(f)(ii) of the Criminal Evidence Act 1898. In respect of that section the House of Lords in Selvev v DPP (1970) AC 304 said that the statute allows cross-examination on the accuser's bad character when imputations on the character of a prosecution witness is cast to show his unreliability as a witness independently of the evidence given by him and when the casting of the imputation is necessary to allow the accused to establish his defence.

Allegations of the fabrication of a police interview were held to be sufficient to allow cross-examination on bad character in R v Tanner 66 Cr. App. R.56, but an allegation that a police witness was a liar was not sufficient in R v Grout 3 Cr. App. R. 64 and R v Desmond (1999) Crim. L. R. 313.

These decisions may appear to contradict each other, and may be difficult to apply to the facts of particular cases. However in R v Jones (W) 17 Cr. App. R. 117, Lord Hewart CJ said at p.120:

"It was one thing to deny that he had made the confession, but it was another thing to say that the whole thing was a deliberate and elaborate concoction on the part of the inspector; that seems to be an attack on the character of the witness."

The authorities on the subject were reviewed in R v Owen 83 Cr. App. R. It was held in that case that a denial or imputation of lying is not enough to invoke cross-examination on bad character, the accused must allege malpractice or police impropriety.

Furthermore, it was held in Selvev v DPP (1970) AC, that where the accused is unrepresented, it is desirable that the judge or magistrate warn the accused that his cross-examination of the witnesses, may expose him to the risk of cross-examination as to character. Although failure to give such a warning is not fatal to a conviction (R v Benson 3 Cr. App. R. 70) a warning is important where the accused is unrepresented for the overall fair conduct of the case.

The record in this case shows that the accused alleged that they were forced to sign their statements, and that they were assaulted in the course of interview. The 4th accused said that the statement "is a lie" and that the police officers were liars.

These questions went further than "an emphatic denial of guilt." They alleged impropriety, malpractice and dishonesty on the part of the police officers questioned. To that extent, cross-examination on previous convictions was properly allowed, although in the interests of fairness the learned Magistrate ought to have warned the accused that they were exposing themselves to the risk of such cross-examination.

This ground of appeal is unsuccessful and is therefore dismissed.

Summary

For the reasons given in this judgment, the appeal by the three Appellants is successful. Their convictions and sentences are set aside. Although the 4th accused did not appeal, his conviction must also be set aside. I do so under the revisionary jurisdiction of the High Court.

I have given consideration to the question of the re-trial, and have in particular taken into account, the nature of the offence, the evidence led in the Magistrates' Court, and the delay of two years since the alleged commission of the offence.

In all the circumstances I do not consider that a re-trial would be justified.

This appeal is successful. The convictions and sentences of all Appellants, and the prisoner Isikeli Tamani, are quashed.

Appeal allowed.

Marie Chan