IN THE HIGH COURT OF FIJI AT SUVA
CASE NO: HAC. 018 of 2017
[CRIMINAL JURISDICTION]

STATE
V
IMSHAD IZRAR ALI

Counsel	:	Mr. M. Vosawale & Ms. S. Shameem for State
		Mr. A. K. Singh for Accused
				
Hearing on	: 	15 - 22 May 2018
Ruling on	:	23 May 2018	

VOIR DIRE RULING

1.	The accused is charged with one count of murder contrary to section 199 of the Penal Code.

2.	The prosecution seeks to adduce the caution interview and the charge statement of the accused [VDPE 2 & VDPE 3] as evidence in the trial. The accused had objected submitting the following as his grounds of objections;

1)   The accused person was slapped around in the police vehicle immediately after his arrest by the arresting officer and three other officers named below:
	i)		D/C[; Vereivalu
	ii)	D/Sgt 2175 Samuela Namusu
	iii)	D/Sgt Joape Ravunibola
	iv)	DC Viliame Loki
2)	The accused person was stripped naked, had his photographs taken, humiliated verbally, threatened and made to press up and was punched on his stomach and back area by the above officers at Nabua Police station and three other itaukei officers in civilian clothes who told him to confess to the murder before the commencement of the caution interview.
3)	At Samabula Police station the accused person upon request to consult his solicitor was not afforded that right at the commencement of the interview and interview continued and he was able to speak to his solicitor over phone later during the interview.
4)	The accused person was continuously threatened by inspector Maharam and 3 other officers that there was no constitution in place and they could do anything to him and he should forget about his rights.
5)	The accused person was held in custody for more than 100 hours and not given regular breaks and this even included his request to go to the washroom during his caution interview.
6)	At Samabula Police station during the caution interview the accused person verbally threatened, humiliated, made to press up and kicked in his groin area, assaulted on his back and abdominal area and deprived of his medications whenever he did not give answers to the satisfaction of the D/IP Abhay Nand and D/IP Maharam by the above named four officers, DC Atish Lal and the interviewing and witnessing officer.
7)	The accused was promised by the charging officer to give the statement that he made on the charge statement in order to get leniency from the court.
8)	The accused person was not afforded medical attention when he complained of blood in his urine during his custody.

Admissibility of a confession
3.	In Ganga Ram and Shiu Charan v. R (Criminal appeal 46 of 1983 delivered on 13th July 1984), the Fiji Court of Appeal said thus;
“It will be remembered that there are two matters each of which requires consideration in this area. First it must be established affirmatively by the Crown (sic) beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as the use of force, threats or prejudice or inducement by offer of some advantage - what has been picturesquely described as the flattery of hope or the tyranny of fear. Ibrahim v. R [1914] AC 599; DPP v. Ping Lin [1976] AC 574.

Secondly, even if such voluntariness is established there is also a need to consider whether the more general ground of unfairness exists in the way in which police behaved, perhaps by breach of the Judges' rules falling short of overbearing will, by trickery or by unfair treatment. R v. Sang [1980] AC 402, 436 at C-E. This is a matter of overriding discretion and one cannot specifically categorise the matters which might be taken into account”. [Emphasis added]

4.	A confession made by an accused to a police officer is inadmissible if that confession was not made voluntarily. Inadmissible confessions, that is, confessions that are not made voluntarily are not placed before the assessors. Therefore, if an accused takes up the position that he made the admissions recorded in either a cautioned interview statement or a charge statement and also says that he made those admissions as a result of oppression and/ or due to the unfairness he was subjected to when the relevant statement was recorded, a court should conduct a voir dire to decide whether that statement was made voluntarily. The prosecution should in such circumstances prove beyond reasonable doubt that the particular statement was in fact made voluntarily, in that, the statement was not made as a result of oppression and it was not made as a result of any unfairness the accused was subjected to when the statement was recorded.

5.	In Kean v State [2013] FJCA 117; AAU 95.2008 (13 November 2013) the court of appeal held thus;

[25] The Appellant claimed that whilst at the Samabula Police Station he was denied meals, proper sleeping facility, toilet facilities and drinking water. He also claimed to have been assaulted. However the Appellant is not really challenging the admissibility of the caution interview on the basis of whether it was made voluntarily, because at paragraph 31.0 on page 7 of his submissions, the following appears:

"It is submitted that although I was assaulted, threatened and subjected to oppressive treatment as above summarised, I nevertheless did not make those statements and I did not sign those photocopy interviews. Police fabricated those statements and fraud (perhaps should read forged) these signatures."

[26] It is apparent that the issue raised by this paragraph is not so much whether the caution statement was made voluntarily but rather the Appellant is claiming that he never made the caution interview admissions and that his signature had been forged. The Appellant cannot rely on both grounds. He cannot claim that the caution interview was obtained by oppression force and unfairness on the one hand and on the other hand claim that he never made the caution interview and that his signature was forged. When this was raised with the Appellant during the course of the hearing before this Court, the Appellant indicated that he was pursuing the claim that he did not make the caution interview in the photocopy and that his signature had been forged.

[27] Although on the one hand the issue whether the caution interview admissions were made voluntarily was a question of law for the judge at the voir dire stage whilst the authenticity of the interview was a question of fact for the assessors to be decided after all the evidence has been heard, the Appellant cannot nevertheless maintain both positions in this appeal. As a result it is not necessary to consider further ground 2 which is rejected.

6.	The issue to be decided during a voir dire in relation to admissions made by an accused to the police is the admissibility of that statement and not its truthfulness.

Evidence

7.	Seven police witnesses, a medical doctor who examined the accused on 12/11/09 and a former Justice of Peace who had a face to face interview with the accused on 14/11/09 gave evidence for the prosecution. The accused and a medical doctor who had examined the accused on 17/11/09 gave evidence for the defence.

8.	According to the prosecution witnesses, the accused was arrested on 12/11/09 and his cautioned interview, VDPE 2 was conducted from 12/11/09 to 14/11/09. The charge statement, VDPE 3 was recorded on 14/11/09. According to the doctor who medically examined the accused, the 07th prosecution witness, there were no injuries found on the accused’s body consistent with the manner and nature of assault as alleged by the accused. This examination was done at the commencement of the cautioned interview on the request of the accused. All the police witnesses said that the accused was not assaulted, threatened or sworn at any point. According to the 8th prosecution witness the former Justice of Peace, the accused told him that the four officers who arrested the accused on 12/11/09 assaulted him and the officers at the Samabula Police Station were lenient on the accused.

9.	The accused said in his evidence that he was assaulted and sworn at by the police from the time he was arrested and during his cautioned interview. He said there was blood in his urine due to the assault and he was not taken to the hospital for treatment. He said he was not allowed to exercise his rights and he was not given sufficient breaks as he needed to use the washroom at least two times in an hour due to him being a diabetic patient.

10.	The accused also said in his evidence that there are three different versions in his cautioned interview as to how the deceased died because he ‘created falsehood’ to persuade the police officers and the final version that involves an iron rod was fabricated by the police. When asked, the counsel for the defence confirmed that the accused’s position is that he did not confess as the first two versions are false and the third version was fabricated by the police.

11.	The second defence witness was said the accused came to him and requested him to issue a medical report on 17/11/09. He examined the accused and he also told him to take pictures of the injuries. He tendered the medical report he prepared on 11/01/10 as VDDE 3. He also identified the photographs which was taken on his instructions and tendered it as VDDE 4. He said he cannot rule out the possibility of the injuries he noted to be self-inflicted. He said the accused had been coming to Fiji Care since 2002. He admitted that he did not mention the age of the bruises he observed. He said the photographs he tendered were not taken in his presence. 

Analysis
12.	In this case the position taken by the accused in his evidence is that he was subjected to oppression and unfairness and such circumstances led him to lie to the police and allow the police to fabricate answers where he simply signed the cautioned interview statement without having the opportunity to read it. This is not a case where an accused says that he was subjected to oppression and unfairness and such circumstances led him to make admissions. In the latter situation, if what the accused says is true or may be true, such admissions are not admissible in evidence and should not be allowed to be placed before the assessors.

13.	Given the accused’s evidence in this case there is no valid challenge on the admissibility of the cautioned interview, VDPE 2. Whether the oppression and the unfairness the accused says he was subjected to led him to lie to the police and allow the police to fabricate his answers are matters to be decided after hearing all the evidence, first by the assessors and then the court.

14.	During the cross-examination of 5th and 6th prosecution witnesses, it was suggested to them that the accused did not make the confessions in the charge statement and the charge statement is fabricated by the police. The accused confirmed this in his evidence. It is pertinent to note that this evidence contradicts the 7th ground above where it is stated referring to the charge statement that “. . . statement that he made”. Given the fact that the accused had taken up the position that he did not make the charge statement, there is no challenge to the admissibility of the said statement based on voluntariness.

15.	All in all I hold that the cautioned interview (VDPE 2) and the charge statement (VDPE 3) are admissible in evidence.

				Vinsent S. Perera
				JUDGE
Solicitors;
Office of the Director of Public Prosecutions, Suva for State.
A.K.Singh Lawyers, Nausori for Accused.