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State v Singh [2015] FJHC 929; HAC27.2013 (19 November 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 027 OF 2013

STATE

V

AMARJEET SINGH

Counsel: Mr. S.Nath for the State
Ms. J. Lagi for the Accused

Date of Hearing: 17th, 18th November, 2015
Date of Ruling: 19th November, 2015

VOIR DIRE RULING

1. The State seeks to adduce into evidence the cautioned interview statement and the Charge statement of the Accused made at the Nadi Police Station on 1st and 2nd of February, 2013.
2. The test of admissibility of all confessional statement made to the Police Officer is whether that was made freely and not as a result of threats, assaults or inducements made to the Accused by person or persons in authority. Further, oppression or unfairness also leads to the exclusion of the confession. Finally, where the rights of the suspects under the Constitution have been breached, this will lead to the exclusion of the confessions obtained thereby unless the prosecution can show that the suspect was not thereby prejudiced.

3. Accused objects to the admissibility of his interview on the grounds that:

I. THAT his confessions were obtained involuntarily through pressure, duress and force by the Police at the Nadi Police Station.

II. THAT on the 31/01/13 he was arrested and taken to the Nadi Police Station.

III. THAT at the Police Station he was beaten up by an Indian Police Officer by the name of Vishal.

IV. THAT at the Police Station he was also beaten up by an iTaukei Police Officer. He was made to lie on the ground and the iTaukei Police Officer hit him on his knee with his safety boot.

V. THATthe Interviewing Officer Vishal wrote the questions and answers in Hindi language and never explained what was being written to the Accused. The Accused was hit when he refused to sign at the places where he was indicated to sign by the Interviewing Officer.

VI. THAT the Accused does not know how to read or write in Hindi yet his interview was taken in Hindi language.

4. What I am required at this stage is to decide whether the interview and charging were conducted fairly and whether the Accused gave the statements voluntarily. If I find that the signature of the Accused was obtained by the Police forcibly, then I can in my discretion exclude the interview and charge statements.

5. The burden of proving voluntariness, fairness, lack of oppression, compliance with Constitutional rights, where applicable, and if there is noncompliance, lack of prejudice to the Accused rests at all times with the prosecution. Prosecution must prove these matters beyond reasonable doubt. In this ruling I have reminded myself of that.

6. Now I look at the evidence presented in respect of the cautioned interview.

Case for the Prosecution

7. Omendra Gupta of Nadi Police Station was called by the Prosecution as its first witness. He is the Police officer who charged the Accused on the 2ndof November, 2013 at the Nadi Police Station.

8. He said that on the instructions of the Crime Officer Amol Prasad, he charged the Accused at the Crimes Office. Interview was conducted in Hindi in the presence of officer Prasad. Prior to or during the charging, Accused was not threatened, intimidated or assaulted. No inducement or promise given. Accused was mentally and physically fit and he made no complaint of anything. He gave the charge statement voluntarily. He fluently spoke Hindi and understood the content. He was not forced to sign. Charge statement was tendered marked as MFI.1.

9. Under cross examination, officer denied that he was present during the interview or having watched Accused being assaulted by fellow police officers at the police station. Accused did not complain of headache or body pain. He was not aware whether the Accused was taken, after being charged, to a hospital for a medical examination. Accused could not read Hindi although he was a class 8 qualified. Content of the charge statement was read back to him and he understood before signing.

10. Shashi Kumar was the next witness for the Prosecution. On 01st February, 2013, while he was based at the Nadi Police Station he reported to work at 8 a.m. and received instructions to witness the interview of the Accused conducted by Detective Sergeant Vishal Kumar. Accused was normal and physically fit. No complaint was made by the Accused before or during the interview which he witnessed right throughout. He did not force or threaten the Accused to sign the interview. Accused signed it voluntarily and after that he counter signed. He tendered the cautioned interview of the Accused marked as MFI 2.

11. Under cross examination, the officer said that even though he reported to official work at 8.00 a.m. he came early on instructions by the Crime Officer to witness the interview which was started at 6 a.m. He denied the allegation that he had started beating up the Accused with two other officers when the Accused was denying the charges. He said that the Accused had no injuries before the interview and was not aware whether the Accused was taken to Nadi Hospital after he received injuries at the Police station. He denied that interviewing officer Vishal was beating the Accused with an iron ruler and forcing him to sign the interview. He admitted that the interview on the 1st of February was suspended early and that that fact had not been properly recorded.

12. Interviewing Officer Vishal Kumar was called by the Prosecution next. He said that on the instructions of Crimes Officer, Amol Prasad, the interview of the Accused was conducted under caution on the 1st and 2nd of February, 2013 at the Crime Branch of Nadi Police Station. It was conducted in Hindi as the Accused preferred to be interviewed in Hindi and the interview was later translated into English. Accused was physically fit, cooperative and had no complaints. Interview started at 6.00 a.m. on the 1st and concluded at 4.00 p.m. on the 2nd and was witnessed by Shashi Kumar right throughout.

13. Accused was not assaulted, intimidated, threatened or oppressed before or during the interview. He was not given any promise or inducement.

14. Under cross examination, Vishal admitted that the Accused was denying the allegation up to question number 35 and then started admitting. He denied using an iron ruler to beat the Accused when he was denying the allegation.

15. He admitted that the interview was suspended at 1.10 p.m. on the 1st and resumed on the 2nd of February at 11.25 and that fact was not properly recorded. Accused had no visible injuries on his body during the interview and denied that the injuries noted by the doctor in the medical report were resulted from police assault.

16. Amol Prasad who gave evidence next was the acting Crimes Officer of the Nadi Police Station when the complaint received. The investigation was conducted under his supervision. Accused did not resist arrest and was corporative. He had no injuries on his body during arrest and had no complaints. Prasad said that he was present at Nadi Police Station when the interview and charging took place, however he did not see the Accused being assaulted at the Police Station.

17. Under Cross examination, witness admitted receiving a complaint from the Accused after the interview and charging on the 3rd of February 2013, that he was assaulted by the police officers. He also admitted that the Accused was taken to Nadi Hospital by DC Saiasi and that Accused had visible injuries on his body before he was taken for medical examination.

18. DC Saiasi Matarugu was the last witness for the Prosecution. He confirmed receiving a complaint on the 3rd of February from the Accused that he was assaulted by Police officers. He then prepared a medical report for the Accused before he was taken to the Nadi Hospital. He however denied that the Accused sustained injuries at the police station.

Case for the Defence

19. Accused said that after he was arrested on 31st January, 2013, and the interview was started by Vishal on the following day. Only Vishal was present on the 1st of February and he was insisting that he tell the truth. When he denied the allegation Vishal discontinued the interview and put him in the cell. On the 2nd of February, Vishal came with two other officers and took him to a small room and started beating saying 'if you do not tell the truth you will be killed'.

20. Whilst he was being interviewed he was in pain. He was forced to sign the interview which was not read back to him. Vishal was beating him on his head with an iron ruler and forcing him to sign the interview. He could not complain to anybody as he was put in the cell thereafter. On the following day he did complain to a Fijian police officer who took him to the Nadi hospital where he was medically examined.

21. A lady doctor examined him. He related to the doctor how his injuries came into being. Accused identified the medical report which he tendered marked as VDE.1.

22. Under cross examination, Accused said that the doctor had reported only the chest injury in her report although she noted all the injuries on his body. He did not get a chance to complain to the Magistrate when he was produced. He was also threatened by the police officers.

Analysis

23. I find that the evidence of the Police Officers to be implausible, and inconsistent. Accused was successful in creating a doubt in the Prosecution case.

24. Prosecution witnesses maintained, throughout the proceedings, that any kind of assault never took place at the Police Station. Interviewing officer Vishal, witnessing officer Shashi Kumar and charging officer Gupta all in unison said that they did not notice any injury on the Accused before the interview or charging. Witnessing officer further said if he had noted injuries, he would have recorded it. Amol Prasad who had gone to arrest the Accused had not seen any injury on the Accused on the day of his arrest. However, on the 3rd of February that is after the conclusion of the interview and charging, Acting Crimes Officer, Amol, had noticed injuries on the Accused. Conceding the Accused's demand that he be sent for medical treatments, Saiasi had sent the Accused to the Nadi Hospital for medical examination.

25. DC Saiasi had filled the 1st page of the Medical Examination Form wherein he had stated that: "alleged that he was assaulted by police during interview". History related to the doctor by the Accused on the 3rd of February, 2013 is that he was assaulted by police officers. Doctor had noted an injury on Accused's chest.

26. None of the Prosecution witnesses was able to explain to court as to how the Accused received injuries when he was in police custody.

27. Accused said that, when he was denying the allegations, he was assaulted by three police officers including the interviewing officer Vishal. He tendered the medical report and showed to Court the scar on his upper lip and the space created by a fallen tooth.

28. Upon perusal of MFI.1, it is clear that the Accused had been denying the allegations up to a certain point and had only started admitting the allegations after question No.36. Interview had taken place for two days, 1st and 2nd of February, 2013. However the interviewing officer had not recorded and was unable to say at what point the interview was suspended on the 1st of February.

Conclusion

29. The only inference that could be drawn from the evidence presented is that the Accused, after his arrest, had been assaulted by the police officers. I do not believe the Prosecution evidence that the Accused was never assaulted.

30. Prosecution has failed to prove beyond reasonable doubt that the Accused's interview and charge statement were obtained voluntarily and fairly. I hold cautioned interview statement and charge statement to be inadmissible in evidence.

Aruna Aluthge
JUDGE

At Lautoka
19th November, 2015

Solicitors: Office of the Director of Public Prosecution for the State
Office of the Legal Aid Commission for the Accused