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State v Prasad [1995] FJHC 37; Hac0009d.94s (17 February 1995)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0009 OF 1994

BETWEEN:

STATE

-v-
GANESHWAR PRASAD

CHARGE: MURDER: Contrary to Sections 199 & 200 of the Penal Code, Cap. 17.

Mr. Wilkinson and Mr. Macnaughtan for State
Mr. Semisi for Accused

RULING

When the learned prosecutor sought to introduce the caution and charge statements of the accused taken by Inspector Keshri Lal and Sgt. Mohammed Saddique respectively, the Defence Counsel asked that the Assessors retire so that a voir dire could be held as the Defence wished to challenge the admissibility of the statements given to the Police by the accused person on the ground that they were not given voluntarily.

The Defence contended that the statements given by the accused persons were obtained as a result of assault, oppression and breach of the Judges' Rules by the Police.

On the other hand the Prosecution denied any assault on the accused person by the police or breach of the Judges' Rules, and affirmed that accused person's statements were given voluntarily and of his own free will.

In the course of the voir dire, seven police officers gave evidence of the course of the investigation and the conduct of the interview throughout the 8th February, 1994. In addition a Justice of the Peace and a Doctor also gave evidence in support.

Inspector Keshri Lal who was then stationed in Suva was appointed the Investigating Officer and arrived at Nausori Police Station at 12 midday on 8th February, 1994 to lead the investigation into the alleged murder of Shanti Sontoshi Devi d/o Bechu Ram. At 3.40pm he commenced with the interview of the accused in the presence of ASP Rao in ASP Sattar's office. No one else was present apart from three above. Accused was cautioned before he was interviewed. Inspector Keshri Lal said that accused was not assaulted or threatened by any one of them and gave his interview with his own free will, and he was free to make telephone calls, and in fact made two calls to his brother in Navua. During the interview he was given refreshments, and dinner in the evening. The interview ended at 9.25pm. The accused was then taken to the Nausori Maternity Hospital for accused to be examined by a doctor as he had injuries on his right hand. After medical examination he was taken to a Justice of the Peace to lodge any complaints against police, or anyone else before and during the interview, if he wished to.

Inspector Keshri Lal said that during the interview the accused did not ask him if he could consult a solicitor. He was with the accused throughout the interview and no one assaulted, threatened or forced him to make any admission at all. The interview statement was tendered as Ex.A.

ASP Subramani Rao was present throughout the interview of the Accused by Inspector Keshri Lal and also witnessed the signing of the caution interview of the accused by signing the same. He said that no one assaulted the accused, threatened or forced him to make any admissions. Accused did not ask him to ring for a solicitor nor did he ask accused if he needed to consult a solicitor as accused being a police officer knew of both the Judges' Rules and Police Standing Order. He added that accused made two phone calls one during the interview and the other after, to his brother in Navua. He himself dialled the number that accused gave him.

Sgt.Mohammed Saddique charged the accused person under caution in the presence of Inspector Sitiveni. No one else was present apart from the three. According to Sgt. Saddique accused gave his statement voluntarily and no one assaulted, threatened or forced him to make any admission. Accused did not ask him for a solicitor to be present when he was charged. Charge statement tendered as Ex.B.

Inspector Sitiveni who witnessed the charge statement said that the statement Ex.B correctly recorded what was said during the charging session. He denied assaulting the accused or threatening him to make admission. He also denied that accused asked him for a solicitor. No one else was inside the charging room apart from the three of them.

Cpl. Muni Deo who brought the accused with two others from the Police barracks in Nausori to the Police Station was accompanied by Constable Chetty. Cpl. Muni Deo asked the accused of his movement during the night and accused answered that he went to Wainibokasi and returned to barrack. Accused did not mention Visama at all. Cpl. Deo said he did not assault, threaten or offer any promise or inducement to the accused nor did the accused ask him for a solicitor. Accused told Cpl. Deo that he was not anywhere near the scene on the night in question. Cpl. Deo denied that accused told him that he wanted to speak to solicitor Suruj Sharma.

Constable Chetty who accompanied Cpl. Muni Deo, accused and two other persons from the Police singlemen's barracks on the morning of 8/2/94 to the Nausori Police Station denied assaulting or threatening the accused on the same day.

ASP Abdul Sattar who was DPC Eastern, stationed at Nausori, said that at about 10pm on 7/2/94 he received a telephone call from Constable Bola informing him that an Indian lady had committed suicide. As a result he gave instruction to the Acting Crime Officer, Nausori Sgt. Ilisoni to attend to the scene of the alleged suicide. ASP Sattar left in the police vehicle at 1.15am 8/2/94 for the scene. When he arrived the body had been removed. He had a torch light with him and he inspected the place. He found that there was a light in the deceased's bedroom and one side of the bed was shaky. He had a close look at the two pillows in the bedroom which aroused his suspicion. He was not satisfied with the alleged case of suicide. He returned to Police Station and sent a message to Supt. Lepani D.C Eastern and Inspector Lopate. As a result they met at the Station later in the morning discussing about the case. At 7am ASP Sattar briefed the ACP(c) by telephone about this case. The ACP(c) and ASP Rao arrived at Nausori Police Station at 9am. Later accused was handed over to ASP Rao. ASP Sattar said that accused was free to move about in the Station and he himself did not give any instruction that accused was to be isolated. He denied that accused requested him if he could see a solicitor. He denied threatening or assaulting the accused and he kept away from the accused as he was one of his own officers and he wanted independent officers from Suva to carry out their work unhindered. He left the Station before the interview of the accused was completed. He said that the initial report on the deceased was one of suicide. After visiting the scene they suspected it was not a case of suicide but a case of murder.

Mr Beni Ram Ragvanand a Justice of the Peace said on the night of 8/2/94 at about 10pm Inspector Keshri Lal brought accused with other police officers to him at his home. The purpose of this visit was for the accused to make any complaints to Mr. Ragvanand against the Police and also to be questioned by Mr. Ragvanand if his statement he had given the police had been given voluntarily. Accused did not make any complaint to Mr. Ragvanand in the presence of Inspector Keshri Lal. The Accused told Mr. Ragvanand that he was not forced by the Police to give his statement but he gave his statement of his own free will.

Dr. Kumar Singh, who examined the accused after his return from Mr.Ragvanand, J.P.; said he and accused were alone when he examined him. He gave evidence of injuries observed on the accused's right hand consistent with teeth marks caused by a back-hand slap and contacting the teeth. He also gave evidence that he carried out a complete physical examination, with the accused undressed, where he felt for any fractures of bones etc., regions of trauma or redness but he found no sign of any physical injury. He said that accused told him his hand injury was caused by punching the deceased. Accused made no complaint to the doctor about any ill treatment at the hands of the police. No other explanation or allegation about the hand injury has been offered by the accused.

The Defence at the end of the case for the Prosecution called the accused and his older brother as witnesses in support of his case.

The Accused said he was sleeping in the police singlemen's barrack at Nausori when Cpl.Muni Deo and Constable Chetty came in to wake him up at 5am as ASP Sattar wanted to see him. Accused who was a soldier in 1986-1989 and served with the Peacekeeping Force in the Middle East accompanied the two police officers with two other friends to the Police Station. Inside Sattar's office, Sattar accused him of being a murderer and that he killed his wife. Sattar also said that accused having been a soldier, he and the Fiji Military Forces were a disgrace and had spoilt the name of the country. He said he attended the Police Academy where he was taught the rights of the Accused and the Judges' Rules, the significance of the accused's caution interview and his right of access to a solicitor. He said that Muni Deo told him that his de-facto wife's death was a suspected case of murder. Accused said when he heard of this he knew he was in trouble and he asked Muni Deo if he could ring solicitor Suruj Sharma. Muni Deo did not say anything. Accused said he was placed on guard in Sattar's office by Constable Mohammed Ali. He asked Constable Ali if he could ring a solicitor and Constable Ali told him he had to get the permission from ASPs Sattar and Rao. He left and returned to tell accused that he was not allowed to ring a solicitor. On the same day ACP(c) Jone Wesele and D.C.I.D Moses Driver went into Sattar's office where accused asked them if he could ring a solicitor but they did not respond to his request. He was not allowed to ring his relatives or solicitor from the time he was brought to the Station till the interview. He said he was also not allowed to move freely when he was in police custody. He asked Sattar earlier on if he could ring a solicitor but was refused. When Inspector Keshri Lal came into Sattar's office at 12.30pm on 8/2/94, accused asked him if he could ring a solicitor but he did not say anything. Accused said that there were eight police officers present including Inspector Keshri Lal who interviewed him. Among the police officers who were present during the interview were, ASP Sattar sitting on accused's right and ASP Rao on accused's left. Inspector Keshri Lal, Cpl. Muni Deo, Chetty, Subhan Ali and others were sitting in front of accused. During the interview he was told by the Police officers to say what they told him to say. He was frightened of the officers. ASP Rao elbowed him eight times on the left ribs and ASP Sattar used to poke his head with his cane if he did not say what they wanted him to say. When he was charged by Sgt. Saddique and witnessed by Inspector Sitiveni all the officers who were present during the interview were also present.

On the way to Mr. Ragvanand, J.P.; Inspector Keshri Lal threatened him if he complained to the J.P. he would not be granted bail. Accused was worried when Inspector Keshri was present while the J.P was talking to him. He said Inspector Keshri Lal used to press his boots on his toes when he was asked by the J.P if he had given his statement to the police voluntarily. Accused said he had to say that he gave his statement voluntarily as Inspector Keshri was sitting beside him.

After seeing the J.P accused was taken to Doctor Singh for medical examination. Accused said that Inspector Keshri and two other police officers were present in the room while he was being examined by Doctor Singh. Accused said that he told Doctor Singh that he received redness on the left ribs under the hands of the Police. He said this in the presence of Inspector Keshri Lal and Cpl. Muni Deo. Accused was taken back to the Police Station where he was locked till he appeared in the Magistrate's Court Nausori the next morning.

During cross examination by the learned prosecutor accused in reply said he knew there is the accused's right to silence. He did not need a solicitor as he knew his rights. He agreed that a suspect has no right to have a solicitor present during the caution interview. He denied being given any refreshments while in police custody on 8/2/94. He made nine requests to the Police to ring a solicitor. He was forced by the Police to say that he murdered his wife by pressing her face with a pillow. He said from Line 62 onwards on the caution interview statement all the answers he gave were forced on him to say by the police. He accused the police of using force and threat on him in order to obtain admission from him.

Santa Ram, accused's older brother who works and resides in Navua said that he did not have any telephone at his home in Navua and he did not receive any call from the Police on 8/2/94. No one told him that accused was in Nausori Police Station and he wanted to talk to him. On 9/2/94 he read in the local daily paper that accused had been charged with murder. He was very concerned about his brother and he left to see him in Nausori. He met the accused who was crying in the Police bure at Nausori. Accused requested him to arrange with solicitor Suruj Sharma to appear for him in court. Santa Ram went to Mr. Suruj Sharma's office but he was not there, so he made arrangement with Mr. Sharma's clerk for someone to appear for the accused on the same day.

In this proceedings the main issue to be resolved by the court is "Did the accused person give his statements to the Police voluntarily ?". If it decides that he gave them voluntarily then they should be admitted, if it is otherwise, then they should be rejected.

I must, however, record my thanks to Counsels on both sides for providing me with a number of authorities which I found very helpful.

In the case for the defence there appears to be two main grounds for challenging the admissibility of the accused's statements namely:

(i) Confession was made as a result of assault by the Police, and statements were made under fear, threat and oppression.

(ii) Breach of Judges Rules.

Let me deal first with the first ground of assault on accused person which is denied by the Police Officers.

Accused person accused ASP Rao for elbowing him eight times on the left ribs area during the interview, and ASP Sattar for poking his head with his cane. It is in evidence that accused was examined by Doctor Singh on the night of 8/2/94 and the only injuries he found were those on his right hand which he suffered as a result of hitting the deceased. Doctor Singh said that the injuries he observed on the accused's hand were consistent with teeth marks caused by a back hand-slap and contacting the teeth. He also evidenced a complete physical examination with the accused undressed, where he felt for any fractures of bones etc., regions of trauma or redness for any sign of physical injury, but he found none. The accused told him his hand injury was caused by punching the deceased. Accused made no complaint to the doctor about any ill treatment at the hands of the Police. No other explanation or allegation about the hand injury has been offered by the accused.

Although, accused, maintained that he was examined by a Doctor at the CWM Hospital after appearing at Nausori Court he was not able to trace the doctor concerned hence no reliance could be placed on the findings of the elusive doctor as it has not been evidenced in Court. Both ASP Sattar and ASP Rao denied assaulting the accused and all the police officers who were called by the prosecution as witnesses denied any assault or threat on the accused as well. It must be remembered that Dr.Singh is an independent witness who examined the accused and has given evidence in court.

The police officers who gave evidence all denied threatening the accused who is a police officer and knew full well what he ought to do if he was threatened by the police. He is not a layman. The prosecution evidence showed that only Inspector Keshri Lal and ASP Rao were present with the accused during his caution interview. No one else was present, and ASP Rao did not assault accused. As for the charging of the accused both Sgt. Saddique, the charging officer, and Inspector Sitiveni, the witnessing officer said that they were alone with the accused when he was charged and no other Police Officer was present. On the evidence as it stands I am not convinced with the contention of the accused that there were eight officers present throughout his interview and all eight were also present when he was charged by Sgt. Saddique in the presence of Inspector Sitiveni. I cannot believe that all eight officers would remain throughout the interview from 3.40pm to 9.30pm instead of doing other duties they were supposed to perform. The Police is a disciplined force and I cannot believe that such laxity of attitudes would be allowed and tolerated by their Senior Officers.

The Defence alleged that the accused was kept in custody for a very long period before he was interviewed. He was brought to the Police Station a little after 5am and was not interviewed until 3.40pm. It was almost ten hours before he was interviewed. The prosecution has explained that the initial allegation or report was that the deceased had committed suicide but on further investigation the allegation of suicide was changed to one of murder. As a result a lot of consultation between Nausori Police Station and the Police Headquarters in Suva together with D.C.I.D. had to take place before the accused could be interviewed. However, I must remind the police of their duty to interview and charge any suspect as soon as possible.

I am satisfied with the evidence adduced by the Prosecution that the accused was not assaulted by any police officer and his caution interview and charge statement were given by accused of his own free will and was not obtained as a result of assault, threat or oppression and I therefore rule that they were given voluntarily and therefore admissible.

(ii) Allegation of breach of Judges Rules.

There is the allegation by the accused that he was not allowed to telephone his relatives and was not administered with the proper Judges Rule (part c) by the Police when they failed to allow him access to his solicitor.

Both Inspector Keshri Lal and ASP. Rao testified that accused made two telephone calls to his brother Santa Ram who lives in Navua. The first call was made during the interview and the second after the interview. On both occasions ASP. Rao dialled the number that accused gave him. But this was rebutted by the evidence of accused's brother Santa Ram that firstly he does not have a telephone in his home in Navua and secondly he did not receive a call from the police on 8/2/94. However, it was not "put" to ASP. Rao by the Defence that he did not dial the telephone number given to him by the accused on 8/2/94. Be that as it may I do not regard that issue as important as the allegation that accused was refused access to a solicitor.

Judges Rule (c) states -

That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so.

It must be made clear from the outset that Judges' Rules are Rules of Practice.

In Jagendra Sharma v. Regina FCA, Vol. 16 p.5 the FCA held:

(1) That the Judges' Rules are rules of conduct directed to the Police and no more.

In R v. Convery 1968 NZLR p.429.

The appellants' argument is that the statements should not have been admitted as being in breach of r.r. 2 and 3 of the Judges Rules.

It was stated in that case

"It has to be remembered that they are not rules of law. See R v. Bass [1953] 1 QB 680; [1953] 1 AER 1064 and Smith v. Queen [1957] HCA 3; (1957) 97 C.L.R 100. The Court should not just ask itself was one of the Judges Rules broken ? The real question is were the circumstances under which the statement was obtained such that in the interests of Justice it would be unfair to admit them and in deciding that regard must be had to whether there was a breach of the Judges Rule."

They are of course subject to the discretion to exclude evidence if the Judge finds that a breach has been proven, on all the relevant and admissible evidence.

The Rule (c) itself, on its proper construction, in my view, creates a right to consult a solicitor, if one is requested. It does not for example, impose an obligation to contact a solicitor in the absence of a request. In this case the prosecution evidence is that no such request was made by the accused.

It has been conceded from the outset in this case, that accused in fact was well aware of the Judges' Rules and the Police Standing Orders. The purpose of the Judges Rule particularly the right to consult a solicitor, is to explain a person's rights whilst in custody. It does not, as has been suggested by the Defence, create a special class privileged of assistance merely because accused happened to be a police officer. Accused during cross examination admitted that he knew of a suspect's rights to consult a solicitor, and he also knew that a right to remain silent was an option open to him. Since accused was a police officer and one who knew his right one would have expected him to remain silent during the interview until he was allowed to consult a solicitor. In any case the prosecution evidence revealed that no such request for a solicitor was made by the accused to any police officer.

Furthermore there is no rule at Common Law or under Statute, that provides a right to have a solicitor, or for that matter, a friend or relative present during the conduct of a caution interview.

In Shiu Narayan v R. FCA, Cr. App. No. 29 of 1980 at page 13, referring to Driscoll v. R (1977) CLR 137 at page 522.

"I also agree that, if practical, a solicitor should be allowed to be present at an interrogation.........."

The Court, in Shiu Narayan then went on to say:

"Of course what may be practical in Australia may not necessarily be so in Fiji.....". The court then referred to paragraph (c) of the Judges Rules. The Court then held at page 14 "as the accused had already been advised of his rights by his solicitor, and there was no law providing that a solicitor might intervene during the course of the interview--------- . There was no basis for holding that a statement could not be given in evidence on this ground."

The evidence of the prosecution shows that the investigation had proceeded from a suicide to one of suspected murder. There was no undue delay in commencing the interview at an appropriate stage. Independent police officers from Suva had assumed control. Any further delay would not have been in the interest of justice or proper administration. The accused was properly cautioned and he knew his rights.

In the case of R v. Sang AER 1979, vol.2 page 1231 Lord Diplock said:

(1) " A trial Judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value."

(2) " Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused, after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained---------".

In R v. Sang (supra) Lord Diplock again said at page 1228:

"So I would hold that there has now developed a general rule of practice whereby in a trial by jury the judge has a discretion to exclude evidence which, though technically admissible, would probably have a prejudicial influence on the minds of the jury, which would be out of proportion to its true evidential value."

Article 6(3)(b) of the Constitution provides:-

Any person who is arrested or detained shall be informed as soon as reasonably practicable,----- of the reasons for his arrest or detention----- and who is not released shall be afforded reasonable facilities to consult a legal representative of his own choice...." This question has been recently addressed by the FCA in Naqiri v. State, Cr. App. No. 11 of 1993, in a judgement delivered on 17th November, 1994. In this case, it was held at page 9 of the judgement that:"------- it is of course, a question of fact, and of inferences to be drawn from facts established, whether the appellant was under arrest or detained." In fact, for a person to be held in custody, there must be something done or said to make the accused believe he was in custody. In Naqiri (supra) the evidence showed that the accused was not free to move about the police station. Furthermore, he was an unsophisticated villager. These facts distinguish the situation in the instant case as the evidence adduced by the prosecution is capable of showing that accused was free to move about, in familiar surroundings.

At page 10 of the Judgement in Nariqi's case the Court made the following findings:-

(i) The Accused may well have been in custody all day;

(ii) There was no evidence he was afforded any facilities to contact a lawyer; and

(iii) There may have been a breach of section 6 of the Constitution.

Despite these findings, the Court of Appeal, of its own authority, after considering the consequences of a failure to comply with the Judges Rules as discussed in the English Court of Appeal in Prager v. R. (1971) Cr. App. R 151, held that:

(i) A breach of the Constitution in this manner gave a possible right to remedy found in Article 19 of the Constitution - i.e. action for unlawful imprisonment, but did not render inadmissible a record of interview made after caution; and at page 11----.

(ii) " After taking into account what was fair and reasonable in all the circumstances, but, above all, whether or not the questions had been answered, and the Statement made voluntarily."

It appears from the prosecution evidence in the instant case that accused was not improperly detained as he was interviewed under caution and taken without delay before a court after he was charged. There has not been any allegation of breach of the Constitution to render accused's caution interview inadmissible.

Furthermore, I find that the probative value of the evidence sought to be admitted by the Prosecution far outweighs its prejudicial effect, and taking into account all matters I hold that the caution interview and the charge statement were entirely voluntary and were obtained in circumstances that were entirely fair and therefore admissible and I so rule.

S W Kepa
JUDGE

17th February, 1995

HAC0009D.94S