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State v Prasad [2011] FJHC 212; HAC42.2010 (31 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 42 OF 2010

STATE

vs

1. ANAND KUMAR PRASAD f/n Alfred Shiri Prasad
2. REENAL PRANEEL CHANDRA f/n Rajendra Chandra
3. REENAL RAJNEIL CHANDRA f/n Rajendra Chandra
4. DEO NARAYAN SINGH f/n Ram Brij Singh
5. SHIRLEY SANGEETA CHAND f/n Alfred S. Prasad
6. ATISHMA KIRTI SINGH f/n Niranjan Singh
   

Mr. W. Pillay for the State
Mr. I. Khan for the 5th Accused

Date of Hearing: 31 March 2011
Date of Ruling: 31 March 2011

VOIR DIRE RULING

[1] The State seeks to adduce into evidence the transcripts of two interviews conducted by the ANZ Bank with the 5th accused on the 12th March 2008 and the 2nd April 2008.

[2] The fifth accused at the time of the interviews was a Senior Bank Officer with the ANZ Bank and investigations had unearthed matters which the bank wanted to clarify. The first interview was more of the "exploratory" interview, while the second was by way of seeking clarification and explanation from the accused. Both interviews contain admissions.

[3] The voir dire was held to determine the admissibility of the two interviews.

LAW

[4] The governing principles to determine the admissibility of a confession were summarized by Shameem J. in Vasuitoga and Qurai – HAC 008/06S where Her Ladyship said:

"When a suspect gives an inculpatory statement to a person in authority, it must be shown and without unfairness or oppression. Further the prosecution must prove that the confession was obtained in accordance with the Constitution (now read common law principles)

and if there were breaches of the rights of suspects under the common law, that the suspect is not thereby prejudiced. The prosecution must prove all these issues to the satisfaction of the Court, beyond reasonable doubt.

The test for voluntariness is whether the suspect gave his statement freely, without oppression or hope of advantage or fear of disadvantage. The purpose of the rule of admissibility and of the suspect's rights under the Constitution is to remove the inherent imbalance of power which exists when a suspect is questioned in custody, whilst preserving the right of the Police to question anyone in the course of proper investigations and in the public interest. In the determining of issues relevant to the admissibility of confession, these are the principles to be considered, and balanced."

[5] Mr. Khan for the accused submits that the interviews were conducted by person(s) in authority and therefore the common law restrictions are brought into play. He says that the admissions were obtained as a result of threats of arrest and humiliation before her peers, and the threat of having Police come to her home, thereby scaring her young children.

EVIDENCE

[6] The prosecution called three witnesses in their case. The first was Ms Kamini Padarath (PW-1) who was the actual interviewing officer on both occasions. PW-1 gave detailed evidence as to her role as Manager of Investigations for ANZ Pacific and to the process involved when irregularities arise in the course of banking business. She then gave a potted history of the investigations into this accused's case and gave evidence as to the careful procedures adopted in giving suspects protection in the investigation process including the interview process. As the interviewing officer, she took care to see that the bank's procedures were followed including giving the suspect interviewee a "support person" to sit with her during the interviews. The interviews both commenced with a long preamble, which has been standardized for ANZ investigations and which affords rights to the interviewee such as the right not to continue with the interview if he/she so wishes. The interviewee was informed exactly why the interview was being conducted and what the allegations against her were.

[7] PW-1 told the Court that this process was undertaken a long time before the Police became involved. She said that during each of the interviews the accused was composed, showing no signs of anxiety. There were two witnesses to the interview, one being the accused's support person and the other an independent observer.

[8] The audio recordings of both interviews were played for about 3 minutes each, to include the preamble and the accused's initial responses.

[9] In cross-examination she denied that the accused had been threatened with arrest if she did not make the interview and she denied that she would have the Police humiliate her in front of her office colleagues if she did not co-operate. She also denied that she contacted the accused by telephone on the morning of the second interview telling her that she would send Police to her house which would scare the children.

[10] PW-2 for the State was Dinesh Kumar who at the time was the Manager of Nadi Prime Banking and therefore the accused's boss. He said he was asked by the accused to be with her during the first interview as a "support person". He noticed that during the interview the accused was confident, comfortable, co-operative, and responding well. She appeared to understand the process. The accused made no complaints to him and he never heard any threats or inducements made to her.

[11] The third and final witness for the State was Ms Anne Abel who is also a bank officer at Nadi. She is a union representative of the banking employees' union. At the accused's request she was present as the support person at the second interview. The accused never made any complaints to her, and she appeared to be of a normal disposition. She was never forced to answer questions, and the witness heard no threats or promises made.

[12] The accused elected to give evidence in her own defence of the application. She stated that on the day of the first interview (12 March 2008) PW-1 approached her with a request for interview about allegations made with respect to the SPOR Fiji account. PW-1 told her that if she did not co-operate the Police would be called and she would be handcuffed and humiliated in front of her colleagues. PW-1 told her "how would you feel if Police came to your house and scare the children?" The accused said she was worried and felt threatened and agreed to the interview. On the second occasion (2 April 2008) PW-1 called her at home telling her she wanted to continue the interview. The accused said she didn't want to but PW-1 threatened to have the Police forcibly produce her and because the kids were at home she agreed to go. She took her friend Anne Abel with her. She consented to be interviewed because of those threats.

[13] In cross-examination she agreed that she had made no complaint to anybody about the threats.

ANALYSIS

[14] Being acutely aware of the need for the State to prove to me beyond reasonable doubt that these interviews were not generated through oppression or unfairness, I approach the evidence with that principle uppermost in my mind.

[15] There is no issue here of voluntariness. The accused concedes that her answers were freely given and of her own free will; however she submits that she was induced into making the interviews by way of threats if she did not co-operate. If I so find that she was threatened then it would then be incumbent upon me to exclude the interviews from evidence in the trial proper on the grounds of oppression and unfairness.

[16] Before dealing with that issue however, there arises the issue of whether these interviews were being conducted of a suspect by "persons on authority". A person in authority is nearly always a Police Officer or an officer of another investigatory agency (such as FICAC) who conducts interviews or takes statements when it is suspected that a crime has been committed.

[17] In this case, the enquiries were being conducted in an investigatory manner by staff members of the bank well before the Police were involved and before any possible offence was settled. It can be seen in the interview that the accused is referring to PW-1 by her Christian name, which runs counter to any claim of oppressive authority. An exploratory interview was being conducted by one of her bank colleagues and it is to be borne in mind that the accused was a very senior bank officer at the time. I find that PW-1 cannot be said to be a position of authority putting allegations of an offence to the accused, and as such the necessity for the process to be subjected to a voir dire is precluded.

[18] Nevertheless, if that were not so, I do go on to make findings as to fairness and possible oppression.

[19] The evidence of the State witnesses is impressive. PW-1 was intelligent, honest, confident and believable. She, as an agent of the bank, went to extraordinary lengths to afford the accused due process. She was told exactly what was being investigated, she was given the opportunity not to take part, and she was given complete freedom to explain her actions.

[20] While it is not relevant to the finding I must make, I say that I did not believe the accused's allegations at all. She was an evasive, manipulative and petulant witness who contradicted herself many times. It is not for her however to convince me of anything. It is the State that has to prove their case.

[21] In the premises I find that the interviews were conducted fairly and without any oppression to the accused. They can be admitted into evidence before the assessors.

Paul K. Madigan
Judge

At Lautoka
31 March 2011