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State v Gounder [2016] FJMC 87; Criminal Case 577.2010 (13 July 2016)

IN THE MAGISTRATE’S COURT OF FIJI

AT SUVA

Criminal case No; 577/10

STATE

V

KRISHNA SAMI GOUNDER

Ruling on Voir Dire

1] The accused is charged with the offence of Larceny by Servant contrary to Section 274 (a) (i) of the Crimes Decree on sixteen counts. He disputed the caution interview (PEx 01)which was proposed to be tendered as evidence by the prosecution. Accordingly the prosecution led evidence of two officers who interviewed and charged the accused in the voir dire inquiry.

2] Generally the courts adopt a cautionary approach towards admission of a confessionary statement of an accused.

"As a matter of general rule, a confession made by an accused person to a person in authority out of court is admissible only if the confession was made voluntarily. The rule which was developed by the English common law is the state of law in Fiji". [Per Justice Gounder in State v AkanisiPanapasa (Criminal Case No 34 of 2009)]

3] The rationale behind this cautionary approach was outlined by Justice Rajasinghein State v Khan [2015] FJHC 560; HAC01.2015 (28 July 2015) where His Lordship said;

“Accordingly, it appears that the principle of rejection of an improperly obtained confession is founded on three main grounds,

i. Unreliability of the confession,

ii. Rights against self-incrimination,

iii. To prevent undesirable police conduct on the person in their custody. “

4] The burden of proof is on the prosecution to prove the voluntariness of the confessionary statement of the accused.it was observed inShiuCharan v R (F.C.A. Crim. App. 46/83) 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)”

5] Justice Rajasinghe in State v Khan ( supra ) enunciated the test to be adopted in determining the voluntariness of the statement relying on the judgment of the Fiji Court of Appeal in ShiuCharan v R (F.C.A. Crim. App. 46/83) as follows;

“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.”

6] The test of oppression mentioned in the above dictum is not required to be applied in the instant case since the defense has not raised any contention that the police have used force, threat or inducement in order to take the statement. The following grounds can be gathered from cross examination and written submissions for disputing the caution interview.

1. The accused was not properly given the opportunity to choose the language he preferred to give the statement.
2. The accused was brought to the police station using a vehicle belonged to the complainant.
3. No witness to the statement
4. The statement was not read over to the accused at the conclusion of the statement.
   

7] Accordingly defense in this case has in fact contended that there has been an unfair treatment when the statement of the accused was recorded. Therefore this court shall now proceed to decide whether any unfairness existed in the procedure adopted by the police when the statement was recorded and whether the unfairness renders voluntariness nugatory.

8] When asked from the interviewing officer P.C. 884 Rohit in cross examination as to why the accused was not interviewed in Hindi which is his usual vernacular, the officer clearly said that the accused well understood English and he was given the option. WhenPEx 1 is perused it appears that sufficient attempt has been made to ensure that the accused understood English. If the accused understood English there is nothing to prevent from interviewing him in English.

9] The second ground in contention is that the accused was brought to the police station with the complainant in his vehicle. This could be a valid ground if the officer is alleged to have used force, threat or intimidation in order to take a confessionary statement in collusion with the complainant. Here the defense has not explained how this mode of transport was instrumental in respect of the voluntariness of the accused’s statement.

10] Presence of a witnessing officer in addition to the interviewing officer is not a sine qua non in a caution interview. It will perhaps help either to corroborate the evidence of the interviewing officer or to test the credibility of his evidence.

11] At the conclusion of recording a statement it is read over to the accused for him to make any correction orto ascertain whether any statement is written which he did not intend to make. This will perhaps help the accused to add or alter any statement he made. In PEx 1 this there is no mention that thestatement was read over to the accused.

12] Judges’ Rules of UK made in 1912 is not a law nor have a binding effect. However these rules provide guidelines for investigation officers of UK. These rules were made when Chief Constable wroteto the Lord Chief Justice asking him to give aruling, clarifying the circumstances in which acaution should be used.

Rule 9 of those rules says that;

“Any statement made in accordance with the above rules should, whenever possible, be taken down in writing and signed by the person making it after it has been read to him and he has been invited to make any corrections he may wish.”

13] It appears that reading over the statement at the conclusion is an essential part of the due procedure of recording a caution interview. The interviewing officer, PW 1, said that he read over the statement but failed to include the explanatory statement. However the absence of this explanatory statement is a fatal irregularity that creates a reasonable doubt in respect of fairness.Oral evidence cannot repair this irregularity.

14] A court of law cannot encourage the deviation of due procedure that has to be followed by the interviewing officer. Fatal irregularities in the caution interview cannot be rectified by a court of law since police is supposed to adopt a fair procedure at its best level when a confessionary statement is recorded and proposes to tender it as evidence.

15] Accordingly this court is of the view that the caution interview of the accused is bad in law and cannot be admissible in evidence.

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE

SUVA

13/7/2016