IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 01 OF 2015

BETWEEN:

STATE

AND:

1. MOHAMMED SHAHEED KHAN
2. ETHAN KAI

Counsel : Ms. S. Kiran with Ms. Fatiaki for Prosecution 
 Mr. Iqbal Khan for 1stAccused
Mr. J. Peluso with Mr. A. Singh & Ms. Subeska for 2ndAccused

Date of Hearing : 5th of August 2015
Date of Ruling : 6th of August 2015 

RULING ON EXCLUSION OF EVIDENCE

1.	The learned counsel for the second accused person made an oral application to delete certain questions and their respective answers in the caution interview of the first accused person. His application is founded on the ground that there is a risk that assessors may form an adverse inference against the second accused person, if the caution interview of the first accused put them before with these questions and answers. The learned counsel urged that such risk could not be avoided even by a strong direction of the court for them to disregard any incriminatory statement made by the first accused against the second accused person. The numbers of these questions and answers in the caution interview are that; 102- 104, 136-155, 224, 240 and 251. 

2.	The learned counsel for the prosecution objected this application, on the ground that, they want to put these answers in relation to prove the mental element of the first count. The learned counsel for the prosecution consented to delete the name and the identity of the person referred in those questions. However, the learned counsel of the second accused was of the view that still such compromise could not avoid such a risk.

Background 

3.	The first accused and the second accused are charged in two different counts in this information. The first accused is charged for Unlawful Importation of Illicit Drug, contrary to Section 4(1) of the Illicit Drugs Control Act. The second accused is charged for Unlawful Importation of Illicit Drug contrary to Section 5 (b) of the Illicit Drug Control Act. 

4.	In view of the first count, the prosecution is only required to prove that the first accused person, without lawful authority imported 29.9 Kg of illicit drugs namely Heroin. In respect of the second count, the prosecution is required to prove that the second accused in dealing with the first accused has imported 29.9 Kg of illicit drugs namely Heroin without lawful authority. 

5.	The first accused person has made a part confession in his caution interview, where he has admitted that the consignment which contained tyres and quad bikes from Bangkok came to his name. He has then tried to get them released but failed due to some fault in documents. He has denied his knowledge that the consignment contained such illicit drugs and the illicit drugs were concealed in the quad bikes. Accordingly, it appears that the caution interview of the first accused person is a mixed statement, including admission as well as an exculpatory explanation. The prosecution proposed to give in evidence the said caution interview, for which the first accused objected. A voire dire hearing was conducted and the court ruled that the caution interview of the first accused person is admissible in evidence. 

6.	Subsequent to the voire dire ruling, the learned counsel of the first accused person advised the court that the first accused consents the prosecution to tender the caution interview as an agreed fact. At that point, the learned counsel of the second accused made this application to delete certain questions and answers in the caution interview on the ground that these questions and answers may lead the assessors to form an adverse inference against the second accused person. 

The Law 

7.	The caution interview of the first accused is only admissible against the maker of the statements. What the first accused said in his caution statementsis evidence against him only. If the first accused implicates the second accused in his caution statement that is not evidence against the second accused. 

8.	However, the main ground of this application is that even with a strong direction to the assessors by the court to disregard any incriminating statement against the second accused person in the caution interview of the first accused, still there is a risk that the assessors might form an adverse inference against the second accused, causing prejudice to the second accused. 

9.	Lord Diplock in R v Sang ( 1979) 2 All ER 1222)having eloquently articulated the necessity of prove the case beyond all reasonable doubt on evidence that is admissible in law, found that a trial judge in a criminal hearing always has a discretion to refuse to admit evidence, which is tendered by the prosecution, if in his opinion its prejudicial effect outweighs its probative value. His Lordship held that; 

“A fair trial according to law involves, in the case of a trial on indictment, that it should take place before a judge and a jury; that the case against the accused should be proved to the satisfaction of the jury beyond all reasonable doubt on evidence that is admissible in law; and, as a corollary to this, that there should be excluded from the jury information about the accused which is likely to have an influence on their minds prejudicial to the accused which is out of proportion to the true probative value of admissible evidence conveying that information. If these conditions are fulfilled and the jury receive correct instructions from the judge as to the law applicable to the case, the requirement that the accused should have a fair trial according to law is, in my view, satisfied; for the fairness of a trial according to law is not all one-sided: it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted……….

I would accordingly answer the question certified in terms which have been suggested by my noble and learned friend, Viscount Dilhorne, in the course of our deliberations on this case. (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.” 

10.	The above passage of Lord Diplock in R v Sang ( Supra) has been further elaborated and discussed in Lobban v R ([1995] 2 All ER 602 ) where Lord Steyn held that; 

“Two principles are clearly established. First, a trial judge in a criminal trial always has discretion to refuse to admit evidence, which is tendered by the prosecution, if in his opinion its prejudicial effect outweighs its probative value. This power has probably existed since R v Christie [1914] AC 545 but, in any event, it was expressly affirmed by the House of Lords in R v Sang [1979] 2 All ER 1222, [1980] AC 402. The power is based on a judge's duty in a criminal trial to ensure that a defendant receives a fair trial. The width of the discretion is circumscribed by the purpose for which it exists. This common law discretion is the foundation of a judge's power to cause part of a written statement made by a defendant, which is adduced in evidence by the prosecution, to be edited in the interests of justice. It is wide enough to allow a trial judge to exclude evidence, which is tendered by the prosecution in a joint trial and is probative of the case against one co-defendant, on the ground that it is unduly prejudicial against another co-defendant. R v Rogers and Tarran was such a case. In such cases it is in the interests of both defendants that the disputed part of the document be edited". 

11.	Accordingly, if undue prejudicial effect on the co-accused outweighs the probative value of the evidence against the other accused, the court has a discretionary power to either edit or exclude such evidence adduced by the prosecution in a joint trial. 

12.	Having outlined the principle of judicial discretion to edit or exclude the prejudicial evidence, Lord Styen in Lobban v R (supra) has further discussed its objectives and limits. His lordship held that; 

"The discretionary power to exclude relevant evidence applies only to evidence on which the prosecution proposes to rely. It exists to ensure a fair trial to the defendant, or, in a joint trial, to each defendant without seeking to differentiate between the qualities of justice afforded to each defendant. It does not extend to the exculpatory part of a 'mixed statement' on which a co-defendant wishes to rely".

13.	Turing into this instant application, I find that the first accused has denied that the bikes belonged to him, when he met the person referred to as Lee in questions 102 to 104 of the Caution Interview. In the questions 136 to 155 the first accused has explained the places and times that he met Lee and found that Lee is a friend of Max. He was sent by Max to collect the bikes. The first accused has further explained that Lee insisted him to get the bikes released and later threatened him. In question 224, the first accused has stated that he could not recall that whether he received money from Vanuatu. Other two questions that the learned counsel for the second accused seeks to delete are related to the places that he met Lee and the surrender of the consignment back to the custom. The first accused has stated in his caution interview the person that he referred as Lee is the second accused. 

14.	In view of these questions and answers, it appears that they are in more exculpatory nature than in probative against the first accused. All of these questions and answers are also related to the interactions of the first accused with the second accused. However, the first accused did not make any competitive objection against this application of the second accused nor advised the court that he will rely on these statements of exculpatory nature in his caution interview. Hence, this application does not fall outside the scope enunciated in Lobban v R ( supra) where it held that this discretionary power of the judge does not extend to the exculpatory part of a 'mixed statement' on which a co-defendant wishes to rely.

15.	I now turn onto discuss whether a strong direction to the assessors to disregard any statement implicating the second accused in the caution interview would avoid the risk as raised by the learned counsel. 

16.	One of the main elements of the second count is that the second accused imported illicit drugs in dealing with the first accused person. Hence, putting these questions and answers which have less probative value against the first accused and incriminating the second accused may have lead the assessors to form an adverse inference against the second accused even they are warned with a strong direction by the court. It is my opinion that there is likelihood that these questions and answers may influence the minds of assessors thus prejudicing the second accused, which are actually not admissible evidence against the second accused. This certainly prevents the second accused to have a fair trial as recognised under Section 15 (1) of the Constitution as well as the test of fair trial enunciated by Lord Diplock in R v Sang (Supra).

17.	I accordingly, allow the application of the learned counsel of the second accused person and exclude the questions and their respective answers in No 102 to 104, 136 to 155, 224, 240 and 251 of the caution interview of the first accused person in evidence. I further order the prosecution to delete these questions and their respective answers in the caution interview of the first accused person, when it tenders as an agreed fact. 

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
6th of August 2015

Solicitors: Messrs Iqbal Khan & Associates for First Accused, 
 Aman Ravindra- Singh Lawyers for Second Accused,
 Office of the Director of Public Prosecutions