IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 05 of 2016

STATE

v

NAVINESH NIRMAL PRASAD

Counsels:		Mrs. D. Kumar for the State
			Mr. A. Sen for the Defendant 

Dates of Hearing	: 	16, 17 July 2018
Date of Ruling	:     	17 July 2018

RULING
(Voir Dire)

1.	The defendant by his Counsel makes application to have the 	record of an interview he made at Seaqaqa Police Station on the 	7th and 8th February 2016 ruled inadmissible as evidence in his 	trial on illicit drug related matters, a trial about to commence in 	this Court.

2.	His amended grounds of objection pray 13 separate grounds, a 	“scatter gun” approach to the application. Apart from an 	allegation of assault on arrest, the remaining grounds centre 	around the conduct of the interview, the complaints being that 	he was threatened to make the admissions that he did, that he 	was not afforded his constitutional rights; that he was not 	provided with appropriate meals, and that his detention was in 	a cell unfit for human habitation and with no provision of 	suitable bedding.

3.	The test in assessing whether the record of interview is 	admissible or not is whether it was made voluntarily, whether it 	was made without oppression and in all fairness and that it was 	not obtained in breach of his constitutional rights. The burden 	of proving whether it was voluntary, fair, not oppressive and in 	accordance with his rights rests on the Prosecution and that 	burden remains on the State throughout. The standard of proof 	is proof beyond reasonable doubt.

4.	I have kept these tests and the requisite standard foremost in 	my mind when assessing the evidence surrounding the 	generation of the record.  

5.	In the case for the State, the prosecutrix called 7 Police 	witnesses. They told of the raid on the home of the accused 	around day break on the 7th February 2016, of the search of his 	house with items of interest found and then of the trek on foot 	to two sites of suspected cultivation, led by the accused. Officers 	then spoke of the delivery of the accused to Seaqaqa Police 	Station for further enquiries including the interview under 	caution, the record of which is the subject of the present 	proceedings.

6.	The amended grounds of appeal make only one serious 	allegation with relation to the time of arrest and search and that 	is that two named officers assaulted the accused at the time of 	arrest and while he was in custody. The officers so named 	denied having committed such an assault and moreover 	Counsel for the accused resiled from this allegation at trial. He 	raised an allegation of assault by yet another very senior named 	officer, an allegation not contained in the grounds of objection. 	This senior officer also denied the assault.

7.	At the hearing, further grounds of objection relating to the 	arrest and search were raised in cross examination and by the 	accused in his evidence, grounds such as the failure to caution 	the accused and to advise him of the offence(s) he was 	suspected of having committed. These two were denied and 	smacking of recent invention were discarded from my mind on 	coming to my finding in this enquiry.

8.	The officer taking part in the interview and recording the 	questions and answers gave evidence along with the witnessing 	officer. Both told the Court of the co-operative demeanor of the 	accused in the interview and denied the allegation that they 	“threatened and induced” the accused. 

9.	They insisted that he was afforded his constitutional rights. 	They deposed that he was provided with appropriate meals, and 	denied that his incarceration was in a cell unfit for habitation. 	The Court was told that the cell was cleaned twice a day and the 	accused was provided with a foam mattress, a sheet and a 	pillow. Washing and shower facilities were nearby and available.

10.	The accused gave evidence and called his Mother as his sole 	witness.
11.	The accused told the court that he was asleep when the police 	party arrived at his house in the early morning of the 7th 	February 2016. When he opened the door he saw about 10-12 	officers and Cpl. Harnam (“CH”) was at the door. CH said 	nothing but pushed the accused away and entered the house. 	CH pushed him to the wall; hand cuffed him and made him sit 	on the sofa. Still nothing was said to him. He wasn’t told he was 	under arrest and he wasn’t told why the Police Officers were 	there. Some officers went into his room searching for something. 	He was told something was found, was called to the door of the 	room and being shown an exhibit was asked what it is. He said 	he had no idea what it was. Bhawan Singh a senior officer then 	slapped his face twice, held his neck and pushed him against 	the wall. Bhawan said “You are a liar and a bastard”. The 	accused said he was angry. He was then taken to the sitting 	room and told that they were going to take him to a place. They 	took him outside, still handcuffed. In saying that they would 	take him to another place they made him walk bare foot 	refusing to let him wear flip flops. They took him about 1.5km 	on a jungle path. When arriving at a place, the Police release 	one of his hands and told him to point out some plants. They 	took him to a second place where he was punched in the 	stomach and kicked in the back. He was crying in pain. At that 	second place they made him stand among plants when a lady 	officer took photographs. 

12.	From there they took him back to the station at Seaqaqa where 	he placed in a cell. He was not given breakfast nor the chance to 	wash. He was told that he had to admit anything he was told by 	the Police and if he didn’t he would be assaulted and they would 	rub chillies on him. He was scared. 

13.	He was interviewed in the English language despite the accused 	telling them that he would prefer to interview in Hindi. He 	wasn’t told what the questions were and the answers are not 	his. A group of officers surrounded him at times threatening 	him to give the answers he was told to give. He was not allowed 	to see a lawyer. 

14.	The interview was suspended on the first day at 1pm. He was 	given lunch and put in his cell until the following day. He had 	bedding and the conditions of the cell were “O.K.”. 

15.	On resumption of the interview the following day, he was not 	reminded of his rights and he was not feeling well. 

16.	It was read back to him in English, which he did not 	understand. He was forced to sign it.

17.	The accused called his mother in Defence. She confirmed that 	the accused was not given a chance to talk when “arrested”; the 	Police were doing all the talking. They slapped him twice and 	pushed his head against the wall He denied knowing anything 	about an item found in his bedroom. She was unable to make 	contact with her son on February 7th and on the 8th February 	she went to Seaqaqa to visit him but she was not permitted to 	see him

Analysis:

18.	The Police gave evidence which I accepted as true and correct. 	There were inconsistencies about the time of arrival and about 	where the accused was during the house search, but these 	inconsistencies did not reflect on the creation of the interview 	under caution. A tribunal would be suspicious of evidence 	which is totally consistent. I find that I can rely on the 	testimony of the officers and I believe them when they tell me 	that there were no improprieties occasioned to the accused.

19.	In contrast I cannot believe the evidence of the accused or his 	witness (his mother). I am cognizant of the fact that the accused 	does not have to prove anything; the burden of proof remaining 	on the State, but nothing he said made me doubt the evidence 	of the prosecution witnesses. 

20.	The 13 amended grounds of objection originally filed in Court 	did not reflect the claims that the accused made in Court before 	me. He resiled from his written allegation of assault and told the 	Court of other assaults perpetrated on him. Details of these 	assaults were raised for the first time in his evidence and never 	heard of before. I did not believe him. I did not believe his claim 	that his English was poor and as a result the interview in that 	language was unfair. The Court noted that he was well able to 	respond appropriately to questions in English from the bench. 

21.	The evidence of the mother, that she saw the assault in the 	house was also unbelievable. The accused has been on bail, 	living with her until this very day and the possibility of collusion 	is apparent. 

22.	I believe that the accused was afforded his constitutional rights 	and the circumstances surrounding the arrest, search and 	interview all lead to an indubitable conclusion that he was 	acting and speaking voluntarily at all times.

23.	I find that his cautioned interview was conducted in all fairness 	with the co-operation of the accused and the record of that 	interview may be led in evidence by the prosecution.

            P.K. Madigan
        Judge

At Labasa
17 July 2018