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State v Naidu [2021] FJMC 21; Criminal Case 11 of 2013 (31 March 2021)

AT NADI WESTERN DIVISION
CRIMINAL JURISDICTION
RESIDENT MAGISTRATE’S COURT

Criminal Case No. 11 of 2013

BETWEEN : THE STATE

AND

GURPA NAIDU


Before : NILMINI FERDINANDEZ
RESIDENT MAGISTRATE


Date of Trial : 27th May, 2019 & 01st June, 2019


Date of Judgment : 31st March, 2021


Sergeant Leone for Prosecution
Mr. Nair for Accused not present


JUDGEMENT


  1. The 1st accused in this case, Gurppa Naidu has been produced in court on 3rd January 2013 charged for one count of Theft contrary to section 291 (1) of the Crimes Act No. 44 of 2009.

Particulars of the Offence

Gurppa Naidu, between the 1st day of August and 6th day of September, 2012, at Nadi in the Western Division, dishonestly appropriated 6 x vehicle brake lamp valued at $900.00, 1 x Hilux Starter valued at $500.00 and 3 x Isuzu valued at $400.00, all to the total value of $6,800.00, the property of Ali Amzad Transport.

  1. The accused has pleaded not guilty for the charge against him.
  2. He has challenged the caution interview and has fiis grounds for Voor Voir Dire, on the 14th December 2015.
  3. The Voir Dire Hearing has been held before me on the 27th May, 2019 and 01st June, 2019.

The Law in regard to Admissibility of a Confession

  1. In Ganga Ram and Shiu Charan v. R (Criminal l 46 of 1983 deli delivered on 13th July 1984), the Fourt of Apof Appeal heat:

“It will be remembered that there are two matters each of whichwhich requires consideration in this area.&#160irst it must be established matirmatively by the Cthe Crown (sic) 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 inducemenoffer of some advantage - what has been picturesquely described as the flattery of hope or e or the tyranny of fear. Ibrahim v. R&#1614] AC 599; 599; DPP v. Ping Lin;[1976] AC 5 AC 574.

Secondly, even if such voluntariness is esshed there is also a need to consider whether the more general groundnfairness&#1ss&#1ss exists in th in which policpolice behaved, perhaps by breach of the Judges' rules falling short of overbearing will, by trickery or by unfair treatment. R v. Sang;[198 402,at C-E. C-E. C-E. This is a matter of overriding discrdiscretion and one cannot specifically categorise the matters which might ken into account”. [Emphasis added]


4. Ju4. Justice Perera stated in State v Ali - Voir Dire Ruling [2018] FJHC 493; HAC018.2017 (23 May 2018):

“A confession made by ansed to a police officer is r is inadmissible if that confession was not made voluntarily. Inadmissible confessions, that is, confessions that are not made voluntarily, are not placed before the assessors. Therefore, if an accused takes up the position that he made the admissions recorded in either a cautioned interview statement or a charge statement and also says that he made those admissions as a result of oppression and/ or due to the unfairness he was subjected to when the relevant statement was recorded, a court should conduct a Voir Dire to decide whether that statement was made voluntarily. The prosecution should in such circumstances prove beyond reasonable doubt that the particular statement was in fact made voluntarily, in that, the statement was not made as a result of oppression and it was not made as a result of any unfairness the accused was subjected to when the statement was recorded”.


  1. In Kean v Stat/b> [2013] 013] FJCA 117; AAU 95.2008 (13 November 2013) the Court of Appeal held thus;

[25] The Appellant claimed that whilst at the Samabula Police Station he was denied meals, proper sleeping facility, t facilities and drinking wang water. He also claimed to have been assaulted. However the Appellant is not really challenging the admissibility of the caution interview on the basis of whether it was made voluntarily, because at paragraph 31.0 on page 7 of his submissions, the following appears:

"It is submitted that although I was assaulted, threatened and subjected to oppressive treatment as above summarised, I nevertheless did not make those statements and I did not sign those photocopy interviews. Police fabricated those statements and fraud (perhaps should read forged) these signatures."

[26] It is apparent that the issue raised by this paragraph is not so much whether the caution statement was made voluntarily but rather the Appellant is claiming that he never made the caution interview admissions and that his signature had been forged. The Appellant cannot rely on both grounds. He cannot claim that the caution interview was obtained by oppression force and unfairness on the one hand and on the other hand claim that he never made the caution interview and that his signature was forged. When this was raised with the Appellant during the course of the hearing before this Court, the Appellant indicated that he was pursuing the claim that he did not make the caution interview in the photocopy and that his signature had been forged.

[27] Although on the one hand the issue whether the caution interview admissions were made voluntarily was a question of law for the judge at the voir dire stage whilst the authenticity of the interview was a question of fact for the assessors to be decided after all the evidence has been heard, the Appellant cannot nevertheless maintain both positions in this appeal. As a result it is not necessary to consider further ground 2 which is rejected.


  1. Accordingly, the issue to be decided during a Voir Dire, in relation to admissions made by an accused to the police, is the admissibility of that statement as one made voluntarily and not its truthfulness.
  2. The Voir Dire grounds filed by the 1st accused in this case through his lawyers on 14th December 2015 noted that the accused objected to the admissibility of the caution interview dated 30th December 2012, on the following grounds:
    1. It is alleged that when the accused was brought from his residence in Toko to the Tavua Police station the accused was assaulted by the escorting police officer from Lautoka Police Station while the complainant stood watching.
    2. It is alleged that the police officers have breached Rule II and III(c) of the Judges Rules which refers to where questions are asked, and more than one police officer is present the record had to be counter signed with other officers present.
    1. It is alleged that the accused was taken to the Bure at the Lautoka Police Station and there were 5 officers present including the Interviewing officer. That the Caution Interview was only signed by the Interviewing officer.
    1. It is alleged that also during the interview, the accused was beaten 2x3 piece of wood, punched on the back and the face by the police officers to admit to the commission of the offence.
    2. It is also alleged that the complainant was present during the caution interview and when the interviewing officer asked the complainant what to do, the complainant told th officers to continue punch and beat the accused.
    3. It is also alleged that during the caution interview the complainant provided lunch for the police officers and was urging the police officers to beat the accused.
    4. It is alleged that the interviewing officer told the accused “... if you don’t admit to the offence, we will continue to beat to you...” and after hearing the words the accused admitted to committing the offence as he was afraid of being beaten further.
    5. It is alleged that the accused was intimidated, harassed and beaten by the police officers to admit to the offence of theft.

Prosecution’s Evidence

8.1 PW1 – Detective Corporal Vimal Pillai of Lautoka Police Station that has 13 years’ service in the Fiji Police Force was called first to give evidence for the prosecution.

8.2 According to his evidence in chief, on the 30/12/2012 he has been instructed to caution interview Gurpa Naidu, an accused in this case. The caution interview has been conducted in English language as per the choice of the accused and he has not received any complaints from the accused before the commencement of the interview, during the interview or at the end of the interview. Accused has been given the opportunity to consult a lawyer or for anybody else to be present with him before the interview commenced. The accused has been given time to rest / breaks while the interview was conducted and has not been threatened or nothing has been offered to him as a promise in any way to elicit him to answer a question. According to Question 113 of the Caution Interview prior to the conclusion of interview the accused has been given an opportunity to read his interview and as per question 114, the accused has been asked whether he wished to add, alter, or correct anything in the record of the caution interview.

8.3 The witness has identified the accused sitting in the accused box as the person he interviewed on 30/12/12. Finally, the Statement of the accused made at the Caution interview was marked as P.EX1.


9.1 In cross – examination, the defence counsel has questioned the witness as to when the accused has been arrested and the reply was that since this witness was only called to interview him, he was unaware of the events before the interview.
9.2 He has explained through cross examination that although his supervising officer has instructed him to interview the accused, has been supervising the interviewing process and has been guiding him, he was not present during the whole process of interview, and therefore, he has not cross signed the record of the Caution Interview.
9.3 The witness has admitted that before the interview the accused had been waiting at the open summer house of the Lautoka Police Station known as the Bure and that there had been other people including police officers and one civilian (the complainant) outside the bure at that time.
9.4 It was further revealed that this witness has commenced the Caution Interview at 8.50 pm on the 30th of December 2012 and the interview has been suspended after 10 minutes at 9pm because the accused has wanted to rest. On the next date the interview has recommenced at 8.30am after breakfast and has continued up to 6.50pm with breaks of approximately 30 minutes.
9.5 When it was suggested that the accused has wanted to rest and the interview had to be suspended at 9pm on the 30th because the accused had been assaulted and could not continue with the interview, the witness replied that the accused has never complained to him regarding any assault.
9.6 Although questions have been put to this witness to suggest that the accused was a person who could not understand English well, the witness has denied the same.
9.7 While admitting that searches have been conducted in the midst of the Caution interview when the accused has mentioned the places he had sold the stolen items, the witness has denied that he, with the accused and the other police officers, has travelled to those places in the complainant’s vehicle. According to him they have travelled in a police vehicle.
9.8 The witness has explained that although the complainant has been in the vicinity in the police station, he was never present in the crime office where the caution interview has been conducted.

Analysis of the Law and the Evidence

  1. As Justice Perera pointed out in State v Ali (Supra), that if an accused takes up the position that the admissions recorded in either a caution interview statement or a charge statement, were so recorded due to oppression and/ or due to the unfairness he was subjected to when the relevant statement was recorded, court should conduct a Voir Dire hearing to decide whether that statement was made voluntarily.
  2. At the Voir Dire hearing if the prosecution is successful in proving beyond reasonable doubt, that the particular statement of the accused was in fact made voluntarily, that the statement was not made as a result of oppression and that it was not made as a result of any unfairness the accused was subjected at the time when the statement was recorded, the said statement made at the caution interview can be placed before the assessors at the trial.
  3. In this case, the prosecution’s only witness, the interviewing officer has given evidence to establish voluntariness, fairness and constitutionality of the interview process, stating how all the rights have been given to the accused before performing the interview and how the accused was never threatened or pressurized or assaulted in anyway during the interview. The accused has been given breaks when he had wanted to rest and had been provided breakfast before recommencing the interview on the next day. I find the evidence by this witness is plausible and believable.
  4. The defence’s position in the Voir Dire grounds was that the accused has been assaulted by the escorting police officer from Lautoka Police Station while the complainant stood watching and that the police officers have breached Rule II and III(c) of the Judges Rules which refers to where questions are asked, and more than one police officer is present, the record had to be counter signed by the other officers that were present.
  5. It is also alleged that the accused has been beaten by a 2x3 piece of wood, punched on the back and the face by the police officers during the interview, to admit to the commission of the offence and that the complainant was present during the caution interview instructing the police officers to continue punch and beat the accused.
  6. However, the accused has opted to remain silent at the Voir Dire hearing, and no other evidence has been led on behalf of the accused to prove those allegations. Even though this accused has been represented by his counsel on the very first day he was produced before the Magistrate he has not mentioned about any assault while in the police custody or any necessity to obtain medical treatment, too. The mere suggestions made to the prosecution’s only witness at cross examination would not be sufficient to prove that the accused has been coerced in any way at the Caution Interview to admit the allegations.
  7. I have also paid attention to the Judges Rule II as well, wherein it states how a caution interview shall be held, because the accused has challenged in the Voir Dire grounds that the police officers have breached Rule II and III(c) of the Judges Rules as to the procedure which needed to be followed at a caution interview. However, I am satisfied that the said Judges Rule does not compel the Interviewing officer to have a Witnessing officer at the time the statement is recorded, although it requires the Interviewing officer to record the time, and place at which any such questioning or statement began and ended and of the persons present.
  8. Having considered all the above, it does not appear as if the accused has made his statement due to any threatening or intimidations made by the police at the time of the interview or before it and I am satisfied that the caution interview has been lawfully conducted and the Accused was not prejudiced in the interviewing process.
  9. Further, as mentioned before, the issue to be decided during a Voir Dire hearing is the admissibility of a statement made by an accused at the caution interview, as evidence and not about the truthfulness of its contents.

Conclusion

  1. I conclude that P.EX1, the statement made under caution by the Accused is admissible in that it was voluntary, not made after the oppressive or unfair questioning by the police. It may be led in evidence.
  2. 28 days of appeal to the High Court.

DATED at Nadi on 31st day of March, 2021.


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Nilmini Ferdinandez
Resident Magistrate


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