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State v Kant [2007] FJMC 22; Criminal Case No 248 of 2005 (3 July 2007)

IN THE RESIDENT MAGISTRATES’ COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CRIMINAL CASE NO.: 248 OF 2005

STATE

V

NAVIN KANT

Prosecution: Inspector Shaukat Ali
Accused: Mr Kevueli Tunidau

Date of Hearing: 21/06/07; 22/06/07; 27/06/07 and 28/06/07
Date of Ruling: 03/07/07

RULING

[1] The accused made a confession in his record of interview dated 20/10/04 and 21/10/04. He was questioned about stolen properties and he admitted to receiving the properties which is subject to the charges in counts 1, 2 and 5.

[2] The record of interview lasted a period of two days that is 20/10/04 and 21/10/04. It commenced at 1.50 p.m on 20/10/04 and there was a drink break at 4.20 p.m and re commenced at 4.25 p.m and there was another break at 5.20 p.m. The interview resumed at 5.30 p.m. The record of interview was suspended at 6.30 p.m to enable the accused to speak to Savitri Devi and Vishwa Jit. It resumed again at 6.45 p.m and was suspended at 7.00 p.m. It resumed again at midday (12.00 noon) on 21/10/04 and concluded at 1.05 p.m.

[3] The accused through his solicitors M/S Iqbal Khan & Associates gave the prosecution two sets of grounds on which the admissibility of the record of interview was being challenged.

(i) The first one was on18/11/05 where it is stated that:

"That the police arrested the accused in breach of Section 27 (1) (a) (d) (f) of the Fiji Constitution".

(ii) The second set of grounds was given on 18/07/06 where the grounds are stated as follows:

"(a) That the statements were obtained in circumstances that were unfair to the accused;

(b) That the accused was systematically softened to the interview in that he was kept in custody in circumstances which was degrading and inhumane;

(c) That the statements were obtained in circumstances that were oppressive;

(d) That the statements were obtained in breach of Rule 2 and 4 of the Judges’ Rules; and

(e) That the statements were obtained in breach of Section 23 (1) (e) 25 (1) and 27 (1) (a), (c) and (f) of the Constitution;

(f) The accused was threatened of assault and assaulted by police officers as a result the accused made confessional statements".

[4] The prosecution called six witnesses for the voir dire and the accused made an unsworn statement and called three witnesses on his behalf.

[5] The prosecution bears the burden of prove which is beyond all reasonable doubt to prove that the caution interview was made voluntarily without any oppression and in observance of accused’s Constitutional Rights.

[6] Although Inspector Manasa Talala (PW6) was the most Senior Officer (Sgt. at the time) and investigating officer was Sgt. Maciu (Cpl. then) (PW1).

[7] Prior to the caution interview the accused’s premises at Hare Krishna Temple was raided on 19/10/04 by a team of police officers including Sgt. Maciu, Inspector Manasa and DC Nagata Batidegei and others and as a result properties which are mentioned in the search list were confiscated.

[8] At the time of search by the police the accused was not present. He was in Suva with Vinod Vashram (the trustee of the Hare Krishna Temple). Vinod was informed of the raid by Savitri Devi (PW3) and he authorized the police to break the door to the accused’s room.

[9] Savitri Devi said that when the police conducted the search their behavior was good and they approached her very nicely and they did not threaten her.

[10] The search concluded at about 1.00 p.m on 19/10/04 and the police seized the items mentioned in the search list and they also took with them devotees/priests namely Satend Kumar, Mahesh Ram aka Manohar, Sunil Kumar and Anil Dutt.

[11] After the police had left with the devotees Savitri received a telephone call from Lautoka Police Station and she was informed that since the accused was the main priest the devotees/priest would only be released when accused came to the police station.

[12] The accused arrived at the temple at about 10.00 p.m. and Savitri told him to go to the police station quickly. The accused arrived at the police station at around 10.00 p.m and thereafter the four devotees/priests were released.

[13] The police station diary for the relevant period could not be located so I do not have the exact time of accused’s arrival at the police station. The accused upon his arrival was verbally interviewed by Inspector Manasa Talala (PW6) and he did not make any records of the verbal interview in his note book.

[14] The accused was thereafter arrested and locked up in the cell. The cell book for the relevant period could not be located so again I do not have the exact time of his confinement to the cell.

[15] The accused was released from the cell at 6.00 a.m on 20/10/04. There is some confusions as to where the accused had his shower. Sgt. Maciu said that the accused had his shower at the Police Station whilst the accused in his unsworn statement said that he was escorted to his quarters where he had his shower and changed his clothing.

[16] Sgt. Maciu said that the accused was extremely co-operative and was assisting the police in their investigation and as a result of his information they retrieved a computer from Field 40, Lautoka (Sachida’s home).

[17] The accused was interviewed under caution by DC Nagata (PW5) and Inspector Manasa (PW6) was the witnessing officer. The accused admitted to receiving the items which are subject to the charge but said that he bought the items.

At question 49 and 56, the accused said as follows:

Answer 49: "I did not know but I suspect that it was stolen"

Answer 56: "I suspect it was stolen".

At question 95 the accused said in answer:

"I admit for receiving these stolen items and I apologized for what I did after now I came to know all items were stolen".

[18] The investigating officer Sgt. Maciu and the interviewing officer DC Nagata and the witnessing officer Inspector Manasa said that the accused made the statement freely and no threat, force, inducement or promise were made to him and nor was he assaulted.

[19] The accused in his unsworn statement at paragraph 8 said that "Manohar was bleeding from his head. When I protested about Manohar’s injury I was threatened by the police that I would face the same treatment if I did not co-operate".

[20] There are two different versions given by the defence witnesses with regards to Manohar (DW2) being assaulted by the police.

(a) Manohar said that at around 7.00 p.m he was beaten by a fat Indian police officer who punched him four times. He does not know the name of this police officer. He also said that Satend (DW2) was also present at the time he was assaulted. He further said that a woman police constable Meena was also present and she stopped the police from assaulting him.

(b) Whereas the version given by Satend (DW2) is that Manohar was beaten by more than one police officer. He said that he was beaten by a police officer who was not part of the team who carried out the raid and another police officer. He said these officers beat him with their hands and were punching him and he received injuries to his head and began to bleed. He said he gave his handkerchief to Manohar and he put the same over the wound and the bleeding stopped after a while. He did not say anything about woman police constable Meena being present and about her stopping the officers from assaulting Manohar. The defence counsel did not put to any of the prosecution witnesses that Manohar was assaulted in the presence of woman police constable Meena.

[21] If the bleeding had stopped immediately after 7.00 p.m then how did the accused see the bleeding on the Manohar’s head after 10.00 p.m. Manohar should have known as to how many police officers beat him. If what he said was true then Satend’s version could not be true. He was unable to show the scar on his head when he was asked to show it by the prosecutor.

[22] In light of the contradictions in the evidence of Satend and Manohar I am unable to place any reliance on their evidence and find as a matter of fact that Manohar was not assaulted by the police.

[23] The accused also said that he was threatened through Ms Savitri that if he did not turn up at the police station the four devotees/priests would not be released. He said this information was relayed to him when he returned to the temple. According to Savitri when the accused returned to the temple she told him to go to the police station quickly. That is all she said. She did not tell him anything about the police not releasing the other devotees/priests until he surrendered.

[24] Satend put his credibility into issue when he gave evidence about Manohar’s assault and I do not find him to be a truthful witness and as such I do not accept that he was assaulted by the police.

[25] The station diary and cell book would have been of assistance to me with respect to the time of accused’s arrival at the police station and the periods of him confinements and release from the cell.

[26] Inspector Manasa was not a very helpful witness. He was the most senior officer and he should have known that the station diary and the cell book were not available. He said that he met Vinod on 19/10/04 during the day. This could not be true as Vinod was in Suva when the police carried out the raid and he did not return to Lautoka until about 10.00 p.m. He was also confused about the date of charging and release of the accused from custody. Other than that he was quite adamant that the accused was not ill treated.

[27] The accused by his own account was very well treated at the Lautoka Police Station. He was allowed to visit his quarters for his shower and change of clothings on the morning of 20/10/04. The accused was a vegetarian and was on a special diet and as a result of his request the police allowed Hare Krishna Temple to supply his food and the food was supplied by Savitri. The police had regard and respect for his religious beliefs.

[28] According to the prosecution witnesses the accused was assisting them. He did not complain about denial of his Constitutional rights to have the services of a lawyer. He surrendered to police voluntarily. If he wanted to he could have taken a lawyer with him but it appears that he chose not to do so.

[29] I accept the evidence of the prosecution witnesses and conclude that the accused was not subjected to any oppression or unfairness and the statements by the accused were made voluntarily.

[Mohammed Shafiullah Khan]
Resident Magistrate