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State v Prasad [2011] FJMC 74; CRC485.2010 (22 June 2011)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Criminal Case No: - 485/10

STATE

V

RONIL PRASAD,
SATNAM SINGH

For Prosecution: - Ms. Prasad J,

2nd Accused: - Mr. Shah,

RULING

1. The second accused person challenged the admissibility of the confession alleged to have been made in the caution interview made by him on the 20th of November 2007 on the ground that is was fabrication and he was oppressed during the record of caution interview.
   
2. Accordingly a voir dire hearing commenced on 01st of December 2010. The prosecution called 2 witnesses and the second accused person gave evidence on oaths for the defence. Subsequently the learned counsel for the Prosecution and the learned counsel for the 2nd Accused person filled their respective written submissions.
   
3. Having carefully considered the evidences adduced by the prosecution and the defence and their respective written submissions, I now proceed to pronounce my ruling in this voir dire hearing on the admissibility of the caution interviews of the Second accused made on 20th of November 2007.
   
4. The prosecution vehemently denied the allegation of fabrication and oppression by the police officers before and during the caution interview of the second accused person. The evidence given by two prosecution witnesses were extensively covered in details leading up to the record of caution interview and the charging statement of the accused person.
   
5. Though I do not expect to reproduce the evidence adduced by the prosecution and the defence, I now briefly summarize the it before I precede to analysis the evidence with the legal principles pertaining to the admissibility of the confession in the caution interview.
   
6. The first prosecution witness ASP Munsami is the investigating officer and the interviewing officer of the second accused. He testified in his evidence that he conducted the caution interview of the 2nd accused on 20th of November 2007. According to ASP Munsami there was no witnessing officer during the record of the caution interview. The first prosecution witness was extensively cross examined on the issue of non availability of witnessing officer. ASP Munsami admitted the importance of a witnessing officer but went on to stated that there is no mandatory legal requirement for a witnessing officer but it is a practice followed by the Police in conducting caution interviews. He further stated that all the police officers who were presence at the Crime Branch at the time of the caution interview were engaged in their other official duties and no one was available. Accordingly ASP Munsami decided to conduct the caution interview without a witnessing officer. In addition to that ASP Munsami stated that the 2nd Accused appeared normal and gave his answered voluntarily. He affirmatively stated that the accused was not assaulted, not intimidated, not oppressed during the caution interview and he gave all his answers on his own accord.
   
7. ASP Munsami was extensively cross examined and put to him that he had lunch with the 2nd accused person and he promised the 2nd accused that he will make him a crown witness which denied by ASP Munsami in his cross examination.
   
8. Second prosecution witness is Constable Rinesh Prasad who is the charging officer of the 2nd accused. He stated in his evidence that he commenced to formally charge the 2nd accused at 15.10 hours and concluded at 15.35 on 20th of November 2007. He stated that he commenced the charging of the 2nd accused soon after he was interviewed by the ASP Munsami. In his cross examination Constable Rinesh Prasad stated that he reported to the duty at 8 am on that day of question and was in the police station during the day. He admitted that he was not called by ASP Munsami to be a witnessing officer to this caution interview.
   
9. Subsequent to the two prosecution witnesses the 2nd accused person gave evidence on oaths for the defence. He stated that he was promised by ASP Munsami that he will make him a crown witness. Further he stated that he took ASP Munsami for a tea and lunch. Moreover he stated Asp Munsami fabricated his statement in the caution interview with the details and information from the statements of 1st accused and Mr. Neel Kamal.
   
10. At the conclusion of the hearing the prosecution and the defence counsel tendered their comprehensive written submissions. The learned counsel for the Prosecution in her submission affirmatively submitted that the evidence adduced by the prosecution has overwhelmingly established that the record of caution interview of the accused person was voluntarily and fairly obtained. Further the learned counsel for the prosecution brought several judicial authorities into my consideration in her submission. The learned Counsel for the 2nd accused person also filled a detailed and comprehensive written submission which I carefully perused and considered in this ruling.
    
11. Having briefly considered the evidence adduced by both parties and their respective written submissions, I now proceed to examine the relevant legal principles pertaining to the admissibility of the confession in the caution interview.
    
12. In the Privy Council case of NG KAM-MING v THE QUEEN&UEEN (19.C. 247 at 261 d261 discussed the basic control over admissibility of statement, where it was held “"The basic control over admissibility of statement are found in the evidl rule that an admission muon must be voluntary i.e. not obtained through violence, fear or prejudice, oppression, threats and promises or other improper inducements. See decision of LORD SUMNER in IBRAHIM v. R (1914-15) AER#160;at 877.&#77. It is to the ece that the cthe court must turn for an answer to the voluntariness of the confessions."
    
13. In Shiu Charan v R v R (F.C.A. Crim. App. 46/83) helt "First, it must be established affirmatively by they the Crown beyond reasonable doubt the statements were voluntaluntary in the sense that they were not procured by improper practices such as the use of force, threats or prejudice or induceme offer of some advantage - what has been picturesquely desc described as "the flattery of hope or the tyranny of fear." Ibrahim v R&#1914) AC 599.&599. DPP v Pin Lin;(1976) AC 574C 574. Secondly&#1en if such volunvoluntariness is established there is need to consider whether the more general ground of unfairness exists in the way in which tich the police behaved, perhaps by breach of thges Rules falling short of t of overbearing the will, by trickery or by unfair treatment. Reginang (1980) AC 402C 402, 436 @ c - E." (State v Rokotuiwai - [1996] FJHC 159; Hac0009r.95s (21 November 1996)
    
14. <14">His Lordship Justice Nawana< in his ruling on voir dire in State v Malelei ( criminal case no:HAC 147/2007) expanded the scope of test enunciated in Shiu Charan (supra) in the admissibility of confessions of the accused person in voir dire hearing. Justice Nawana held that "A confession, as observed at the out-set of this ruling, is an objectionable item of evidence in view of its inherent infirmities. Its admission in evidence should, therefore, be scrupulously examined by court and apply the widest possible test that favours an accused person. Accordingly, having regard to the facts and circumstances of this case, I am inclined to adopt the four-pronged test laid down in the English PACE Act to expand the scope of the test enunciated in Shiu Charan v R (supra).
    
15. Having expanded the scope of the test enunciated in Shui Charan v R (supra) His Lordship Justice Nawana extensively discussed the laws pertaining on the admissibility of confessions in England and other commonwealth countries. Justice Nawana held that "A confession, in general, is violative of the rule against self-incrimination, which courts strive to uphold at all times as an inviolable principle at common law. The reliance on a confession to advance a prosecution case, in my view, is to perpetuate a residuary principle of archaic criminal law. It is also paradoxical to have relied on an accused-person and his confession to found a prosecution, when the modern trends of proof require the prosecution to prove its case on its own. The dependence on an accused-person's confession, on the other hand, results in the inefficacious scenario of police inaction to employ scientific and innovative methods in criminal investigations. Instead, it leaves room for impermissible police excesses on suspects in particular and perhaps on members of community in general.
    

Confessions to police, therefore, are not admissible in most of the Commonwealth jurisdictions. In India, for example, a confession to a police officer is excluded by explicit statutory provisions in terms of Section 25 of the Evidence Act of 1872, which states:

No confession made to police officer shall be proved as against a person accused of any offence.

In countries, where such confessions are made admissible, for example in Australia stringent legal provisions are in place for their inclusion in evidence. The common law requirement that only confessions made voluntarily should be admitted by court is found under Section 84 of the Evidence Act 1995 of Australia. It provides that a confession is not admissible unless the court is satisfied that the confession is not influenced by violent, oppressive, inhumane or degrading conduct or such threat. Based on these principles, confessions are excluded by the use of different tests as expounded in the cases of R. v. Swaffield and Pavic v Queen 1998 HCA 1 ((1998) 192CLR 159, where the Australian High Court formulated the following:

(a) Was it voluntary? If so,

(b) Is it reliable? If so,

(c) Should it be excluded in the exercise of discretion?

The test encompasses public policy issues, in addition to it being concerned with fairness of the trial and exclusion of prejudicial evidence; and, court is invested with discretion to exclude a confession upon consideration of such matters.

Currently in England, under the PACE Act, a precise and elaborate statutory framework is enacted for exclusion of a confession. The PACE Act provides under Section 76:

(1) In any proceedings, a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.

(2 ) If, in any proceedings where the prosecution proposes to give in evidence, a confession made by an accused person, it is represented to the court that the confession was or may have been obtained—

(a) by oppression of the person who made it; or

(b)in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.

...

Section 78 (1) of the Act significantly contains provisions for exclusion of unfair evidence in following terms:

Exclusion of unfair evidence

In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

...

The above statutory mechanisms are in addition to the general power and discretion of court 'to exclude evidence if it is necessary in order to secure a fair trial for the accused' (Scott v R. [1989] AC 1242 at1256) as retained under Section 82 (3) of the PACE Act, which reads:

Nothing in this Part of this Act shall prejudice any power of court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.

Under the English law, the admissibility of a confession, therefore, could be challenged in one or more of the four ways as set out above ( Archbold: Criminal Pleading, Evidence and Practice 2011; Sweet & Maxwell, at 1671) at a voir dire."

16. The burden is on the prosecution to prove beyond reasonable doubt that the statement made in caution interview is made in voluntarily. (State v Rokotuiwai - [1996] FJHC 159; Hac0009r.95s (21 November 1996).
    
17. The burden of proof beyond reasonable doubts lies with the prosecution. It was held in Woolmington v DPP (1935) AC 462), that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Where the burden of proof, remains on the prosecution throughout the trial, in that circumstance, the accused need only to raise sufficient evidence to cast reasonable doubt on the issue". ("Andrews & Hirst on Evidence" 4th Edition, pg 59).
    
18. Lord Goddard CJ in R v Summers (36, Cr. App R. 14 at 15 CCA) held that "Jury before they convict, they must be satisfied so that they are sure of the guilt of the accused". furthermore, it was held in " R v Bentley ( 2001) 1 Cr App R 21" that on reviewing all the evidence, if they were unsure or left in any reasonable doubt as to the accused's guilt, that doubt must be resolved in the accused's favour".
    
19. Bearing in mind the laws pertaining to the admissibility of confession in the caution interview of the accused person and the laws pertaining to the legal burden on the prosecution to prove beyond reasonable doubt, I now proceed to analysis the evidence adduced by the prosecution and the defense.
    
20. In view of the aforementioned judicial precedents on the admissibility of the confession in the caution interview, I am of the view that the record of caution interview is the most prominence cornerstone of the entire investigation. Hence the investigators must exercise a proper and due diligence of professionalism and fairness in respect of recording of caution interview.
    
21. Moreover, the court should consider the atmospheric authoritative environment at where the accused person has to make his statement in caution interview. The accused is in police custody and kept in the police station which naturally enhances an aversive environment in the mind of the accused person. In such a condition, the interviewing officer has a stupendous responsibility to conduct the caution interview in a proper and fairly manner.
    
22. Now I have to determine with analyzing the evidence presented by the prosecution and the defence whether the manner in which the caution interview of the 2nd accused was recorded would meet such a high standard of professionalism and fairness as enunciated in Shiu Charan v R (Supre) and State v Malelei (supra).
    
23. The main contention of the 2nd accused is that he was oppressed and his statement in the caution interview was fabricated.
    
24. ASP Munsami in his evidence-in-chief stated that he chose not to have a witnessing officer during the caution interview. He stated that he conducted the caution interview at the crime branch officer in Totoga Police station while other police officers were engaged in their normal duties. ASP Munsami admitted in his evidence that it is a normal standard practice to have a witnessing officer during the record of the caution interview and if such a witnessing officer present during the interview he is able to verify the event took place during the interview. Though he admitted the importance of the witnessing officer during the record of caution interview, he stated that the presence of a witnessing officer is not mandatory wherefore; he chose not to have such witnessing officer. In his evidence ASP Munsami failed to give a satisfactory firm answer why he chose not to have a witnessing officer during the record of 2nd accused person's caution interview. ASP Munsami was in a long silence during his re examination on 12th of December 2010 and stumbled to answer why he chose not to have a witnessing officer. After stumbling sometimes, he said that there were no police officers available at the police station to be a witnessing officer for this the caution interview.
    
25. Further in his cross examination he stated that other police officers were moving here and there and were busily engaged in their official works. ASP Munsami failed to give a satisfactory answer why he did not wait to conduct this caution interview until a one of the police officers who was present at the crime branch to finish whatever their engagement and make himself available for the caution interview as a witnessing officer. Moreover ASP Munsami was not able to give a precise explanation why he hurriedly conducted this caution interview when all other officers were busy and not available to witness this caution interview.
    
26. In contrast to ASP Munsami, Cpl Rineh Prasad stated in his evidence that he was in the crime branch from 8 am in the morning and he was not asked by ASP Munsami to be a witnessing officer to this caution interview. Ironically Cpl Prasad was available to record the charge statement of the 2nd accused at 15.10 hours which is exactly 10 minute after the conclusion of the caution interview of the 2nd accused.
    
27. It is surprise that ASP Munsami who is having 29 years of experience behind him stated in his evidence that the presence of a witnessing officer is not a mandatory requirement. There is a space available to record the name of other persons present in the form A1, the official caution interview format is used by the Police Department to record caution interview which specifically indicates that the presence of a third party other than the interviewing officer and the accused person is an undeniable right of the accused person. As I set out in above paragraphs, it is a duty of the interviewing officer based on the principle of fairness and the principle of transparency to have a witnessing officer specially in the event that the accused was not accompanied by any of his relatives, a lawyer of his own choice or a guardian. Under this circumstance, a reasonable doubt arises whether ASP Munsami deliberately conducted this caution interview without a witnessing officer by violating the principle of fairness enunciated in Shiu Charan v R (Supra) and State v Malelei ( Supra).
    
28. In view of the foregoing reasons set put in above paragraphs, I am of the view that the evidence presented by the prosecution has failed to establish beyond reasonable doubt that the confession of the 2nd accused in his caution interview was recorded in line with the principles set out in the Shui Charan v R (Supra) and State v Maleli (Supra). In this circumstance, I am of the view that the admission of the confession of the 2nd accused in his caution interview as evidence would have adversely affects the fairness of this hearing.
    
29. Accordingly, I rule that the confession of the 2nd accused in his caution interview dated 20th of November 2007 is not admissible in evidence in this trial on the ground of unfairness and wherefore, I reject the same.