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State v Panapasa [2011] FJHC 694; HAC034.2009 (5 April 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC034 of 2009

STATE

v.

AKANISI PANAPASA

Hearing: 8, 9, 11 March 2011
Ruling: 5 April 2011

Counsel: Mr. W. Pillay for State
Ms A. Neelta with Mr. V. Vosarogo for Accused

RULING

Introduction
[1] The Accused objects to the admissibility of confessions made to her employer and to the police on the following grounds:

Confession to employer (Niranjan Group)

• Obtained as a result of oppressive and unfair conduct on part of the financial controller of the Niranjan Group;
  
• Financial controller failed to read the Accused her rights before obtaining the said letter;
  
• The Accused was confined to Boardroom for a period of 4 hours or so by the financial controller.
  
• Whilst confined to the Boardroom, the Accused was prevented from talking to anyone to seek assistance.
  

Caution Interview

• Obtained unfairly by the police;
  
• The police were in custody of the confession letter which was unfairly obtained by the financial controller;
  
• The police relied on the confession letter and wrote the caution interview;
  
• The Accused was interviewed by the police to make statements as she had already confessed to her employer.
  

Charge Statement

• Statement was typed, written and given to the Accused to sign, the conduct of the police being prejudicial, improper and unfair;
  
• Statement was oppressively and unfairly obtained;
  
• Statement was obtained in breach of the Judges' Rules.
  

[2] A trial within trial was held to determine the admissibility of these statements. The admissibility of evidence is a question of law for the judge to determine in the absence of the assessors.

Evidence
[3] The prosecution led evidence from three witnesses. The first witness was Nilesh Niranjan, the former employer of the Accused. The second witness was WDC Angline Kumar. WDC Kumar witnessed the caution interview and the charge of the accused. The third witness was Cpl. Sanjay Deo. Cpl. Deo charged the Accused.

[4] In July 2008, Nilesh Niranjan received a report of discrepancies in the accounts of their Walu Bay branch of Budget Rent A Car from the company's financial controller. Budget Rent A Car was in the business of leasing motor vehicles. The Accused was the manager of the Walu Bay branch, having worked for the company for nearly sixteen years. She was called to the head office at Gratham Road, to explain the discrepancies. The initial discussion took place between the company's financial controller and the Accused on 7 July 2008. The next day, 8 July 2008, a second meeting took place between the Accused, the financial controller and Nilesh Niranjan. The meeting was in the sales training room at the head office. The Accused voluntarily attended the meeting. She was not forced to attend the meeting. The Accused was familiar with the training room as she had previously attended meetings in that room. As Nilesh Niranjan walked into the meeting he saw the Accused sitting at the table with her head down. Nilesh Niranjan asked the Accused whether there was something she wanted to tell him. The Accused responded by saying, "sorry, I did it and I will pay it back." Nilesh Niranjan expressed disappointment with her and told her that if she wanted to say anything to him, she can put it in writing. The procedure to ask the explanation in writing was a normal business practice. He then left the meeting. The Accused wrote a letter (MFI 1) and handed it to the financial controller. Nilesh Niranjan did not see the Accused write MFI 1. MFI 1 was given to him by the financial controller. Nilesh Niranjan brought the letter to the attention of the Board of Directors. The Board decided to report the matter to the police.

[5] In cross-examination, Nilesh Niranjan accepted that the Accused was not advised to speak to a lawyer or to remain silent in the meeting he had with her on 8 July 2008.

[6] The Accused was caution interviewed by Sgt. Ganesh on 18 August 2008 at the Central Police Station. The Accused voluntarily went to the police station after learning that some police officers had come to her home on the day before. WPC Kumar witnessed the interview. The interview commenced at 9.55am. The allegation was explained to the Accused and she was advised of her rights. She made incriminating statements.

[7] The interview was suspended at midday. The Accused was released to go home and return to the station the next day to continue with the interview.

[8] On 19 August 2008, the interview commenced at 9.30am. The Accused was reminded of her rights. The Accused made further incriminating statements. The interview was concluded at 12.20pm.

[9] Following her interview, the Accused was charged by Cpl. Deo. The allegation was put to her and she was advised of her right to remain silent. The Accused made incriminating statement. The charge statement was contemporaneously typed, printed and signed by Cpl. Deo, WPC Kumar and the Accused.

[10] The Accused in her evidence said that she was asked to see the financial controller on 7 July 2008. When she arrived at the head office, the financial controller took her to a small room and questioned her about the outstanding military account. The Accused was directed to bring documents pertaining to the military account. She complied with the direction. She was taken to the same small office where the financial controller told her that she will be liable for the outstanding military account because she was not able to collect the payment. The Accused was asked to reconcile the military account. She remained in the office until 5pm. She returned to the head office the next day on the financial controller's instruction. The financial controller met the Accused in his office. He confronted her with the discrepancies in the accounts. The Accused was confused and depressed. The Accused asked to see Nilesh Niranjan but her request was turned down by the financial controller. The financial controller made the Accused admit that she was responsible for the shortfall in banking. This occurred in the same small office.

[11] The financial controller forced the Accused to write MFI 1. She was in the small office for two to three hours. The financial controller told the Accused she could not leave the office until she writes MFI 1. The financial controller told the Accused that if she writes MFI 1 she would not be reported to the police.

[12] When the Accused was caution interviewed, MFI 1 was shown to her during the interview and she was told by Sgt. Ganesh that she could not argue against the allegation as she had confessed to her employer. The Accused confessed to the police. The next day the Accused was given an already typed charge statement to sign. She cannot recall if she had read the charge statement before signing it.

General Rule
[13] As a matter of general rule, a confession made by an accused 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.

[14] In the eighteenth century English case of Reg. v. Thompson [1893] UKLawRpKQB 74; [1893] 2 QB 12, Cave J said at p.15:

"If it" (the confession) "proceeds from remorse and a desire to make reparation for the crime, it is admissible. If it flows from hope or fear, excited by a person in authority, it is inadmissible."

[15] Later, in Ibrahim v. The King [1914] AC 599 Lord Sumner said at p.609:

"It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority."

Person in authority
[16] The defence submits that the Accused's employer was a person in authority, and therefore, the general rule applies to the confession made to the employer.

[17] The State contends that the Accused's employer was not a person in authority. Counsel for the State submits that the general rule does not apply to the confession the Accused made to her employer.

[18] Mr. Pillay for the State has helpfully referred to the Canadian case of R v Grandinetti [2005] 1 SCR 27, 2005 SCC 5, in which the Supreme Court of Canada has extensively discussed the meaning of the phrase "person in authority". In that case, the trial judge ruled that the accused's confession to the undercover officers was admissible, holding that the undercover officers could not be persons in authority and no voir dire on voluntariness was necessary. On appeal, the Supreme Court of Canada held:

"To ensure fairness and to guard against improper coercion by the state, statements made out of court by an accused to a person in authority are admissible only if the statements were voluntary. The question of voluntariness is not relevant unless there is a threshold determination that the confession was made to a "person in authority." A "person in authority" is generally someone engaged in the arrest, detention, interrogation or prosecution of an accused. Absent unusual circumstances, an undercover officer is not usually viewed, from an accused's perspective, as a person in authority. In this case, the accused failed to discharge the evidentiary burden of showing that there was a valid issue for consideration, namely, whether, when he made the confession, he believed that the person to whom he made it was a person in authority. The accused believed that the undercover officers were criminals, not police officers, albeit criminals with corrupt police contacts who could potentially influence the investigation against him. Where, as here, an accused confesses to an undercover officer he thinks can influence his murder investigation by enlisting corrupt police officers, the state's coercive power is not engaged. The statements, therefore, were not made to a person in authority and a voir dire on voluntariness was unnecessary."

[19] The rationale for the rule was explained in an earlier Canadian case of R v Hodgson [1998] 2 S.C.R. 449 by Cory J:

"The rule is based upon two fundamentally important concepts: the need to ensure the reliability of the statement and the need to ensure fairness by guarding against improper coercion by the state."

[20] Cory J also said at paras 34 – 36 and 47:

"Since the person in authority requirement is aimed at controlling coercive state conduct, the test for a person in authority should not include those whom the accused unreasonably believes to be acting on behalf of the state. Thus, where the accused speaks out of fear of reprisal or hope of advantage because he reasonably believes the person receiving the statement is acting as an agent of the police or prosecuting authorities and could therefore influence or control the proceedings against him or her, then the receiver of the statement is properly considered a person in authority. In other words, the evidence must disclose not only that the accused subjectively believed the receiver of the statement to be in a position to control the proceedings against the accused, but must also establish an objectively reasonable basis for that belief....

...there is no catalogue of persons, beyond a peace officer or prison guard, who are automatically considered a person in authority solely by virtue of their status. A parent, doctor, teacher or employer all may be found to be a person in authority if the circumstances warrant, but their status, or the mere fact that they may wield some personal authority over the accused, is not sufficient to establish them as persons in authority for the purposes of the confessions rule....The person in authority requirement has evolved in a manner that avoids a formalistic or legalistic approach to the interactions between ordinary citizens. Instead, it requires a case-by-case consideration of the accused's belief as to the ability of the receiver of the statement to influence the prosecution or investigation of the crime. That is to say, the trial judge must determine whether the accused reasonably believed the receiver of the statement was acting on behalf of the police or prosecuting authorities."

[21] The relevant inquiry is whether the Accused at the time she confessed reasonably believed that her employer could influence the prosecution or investigation of the crime she allegedly committed.

[22] On the evidence before the court, Nilesh Niranjan and his company's financial controller were not agents of the police or the prosecution when the Accused confessed to them. When the financial controller found discrepancies in the accounts which the Accused were handling as an employee, she was asked to explain the discrepancies. When the Accused could not explain the discrepancies, she confessed to theft.

[23] I accept the evidence of Nilesh Niranjan that he had not made any decision to involve the police when he learnt about the discrepancies in his company's accounts from the financial controller. The decision to report the Accused to the police was made by the Board after the Accused confessed to him orally and handed her confession in writing.

[24] However, there is evidence from the Accused that the financial controller threatened or induced her that she would not be reported to the police if she confessed to theft. An inducement may take the form of some fear of prejudice or hope of an advantage exercised or held out by a person in authority (R v. Voisin [1918] 1 KB at pp 537, 538) and that even the most gentle threat or slight inducement will taint a confession (R v. Smith (1959) 43 Cr. App. R. 121).

[25] If the evidence of the Accused is accepted, then it could be concluded that she reasonably believed that her employer who already had personal authority over her could deflect police investigation and prosecution against her if she confessed.

[26] The financial controller was not called to give evidence by the State. He had left the country before the hearing and attempt to lead evidence from him through CCTV by the State was unsuccessful.

[27] Nilesh Niranjan accepted that his meeting with the Accused in which she orally confessed was brief. He was not present in the meetings between the Accused and the financial controller on 7 July 2008 and on 8 July 2008 when the Accused wrote her confession letter. In this regard, there is no evidence led by the prosecution to rebut the evidence of the Accused regarding the threat or inducement made by the financial controller in the absence of Nilesh Niranjan.

[28] I do not have to make a factual finding of a threat or inducement before I exclude the confession from evidence. If on the prosecution evidence, I entertain a reasonable doubt about the voluntariness of the confession, then it must be excluded from the evidence.

[29] In this case, I do not feel sure that the threat or inducement alleged by the Accused was not made by the financial controller in the absence of any evidence from him. His evidence was crucial for the prosecution to discharge the burden to prove the voluntariness of the confession made by the Accused to her employer. I find the Accused has discharged the evidential burden of proof that her employer was a person in authority, but the prosecution has failed to discharge the legal burden of proof that her oral and written confessions to her employer were made voluntarily. The confessions made to her employer are held to be inadmissible.

Confessions to the police
[30] The confessions made to the police by the Accused are challenged under the unfairness ground.

[31] There exists a general discretion to exclude a confession on the ground of unfairness even if the confession was voluntary (R v Sang [1979] UKHL 3; (1980) AC 402). The principles and exercise of this discretion can be found in the judgment of the New Zealand Court of Appeal in R v Horsfall (1981) 1 NZLR 116 at p.121. The principles were adopted by the Court of Appeal in Ganga Ram & Anr. v. Reginam Criminal App. No. 46 of 1983 at p.8.

[32] The New Zealand Court of Appeal in an earlier judgment in R v. Convery [1967] NZCA 37; [1968] NZLR 426, at p.438 stated the principles upon which the discretion is exercised:

"Whether the course of the inquiry, as proved in evidence, makes it unjust that the statement should be received. In answering this inquiry the court may consider not only the case immediately before it, but also the necessity of maintaining effective control over police procedure and the generality of cases."

[33] It is clear from these authorities that the principles are directed at the conduct of police officers who engage improper or unfair methods to obtain confessions from the suspects.

[34] Mr. Vosarogo submits that the confessions made by the Accused to the police are tainted because they were obtained as a result of the unlawful confession obtained from the Accused by her employer.

[35] The evidence before the court is that the police investigation was an independent inquiry. The employer of the Accused was not involved in the police interrogation of the Accused. She was already terminated from her employment. The Accused voluntarily went to the police station. She was informed of the allegation and advised of all her rights. The Accused voluntarily made incriminating statements. The interview was suspended and the Accused was asked to return to the police station the following day. The interviewed re-commenced in which the Accused made further incriminating statements. After the interview was concluded she was formally charged by a different police officer.

[36] The Accused said that before the commencement of the caution interview, the interviewing officer showed the confession letter she wrote to her employer and informed her that she could not argue against the allegation. She also said that she was given a typed charge statement to sign without due process.

[37] According to the record of caution interview, at no stage, the interviewing officer put to the Accused the confession letter she wrote to her employer. In this regard, I accept the evidence of WDC Kumar. Her evidence is consistent with the record of interview that the confession letter of the Accused was not shown to her before or during the interview.

[38] I also accept the evidence of Cpl. Deo that he charged the Accused after advising her of all her rights. I feel sure that the police officers involved in the interview and charging of the Accused acted fairly at all times towards the Accused.

[39] I find that the confessions to the police are not tainted by the inadmissible confession that the Accused made to her employer. I hold that the confessions made to the police are admissible and may be led in evidence.

Daniel Goundar
JUDGE

At Suva
5 April 2011

Solicitors:
Office of the Director of Public Prosecutions for State
Neelta Law for Accused