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State v Khan [2014] FJMC 63; Criminal Case 1624.2009 (24 April 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case No: - 1624/2009

STATE

V

ASLEEM KHAN

Ms. Jayneeta Prasad for the State
Ms. Preetika for the Accused

RULING ON VOIR DIRE

[1] The accused is charged with one count of larceny by servant, 11 counts of forgery, 11 counts of uttering a forged document and 11 counts of obtaining money on forged document contrary to various provisions of the Penal Code.

[2] The accused had made admissions in his caution statement dated 16th November 2009 and now he is challenging the admissibility of that in this Court.

[3] The basis for his objection was that he was given a false promise by IP Munsami prior to the caution interview and because of that he admitted the offences in his interview.

[4] A voir dire hearing was conducted on 25/11/13, 03/04/14 and 08/04/14. The State called three witnesses and for the defence the accused gave evidence.

[5] PW1 was DC Lagi who conducted the caution interview of the accused. He was on duty on 16th November 2009 in Central Police Station and made arrangements for the accused to come to station as he was also the IO in this case. The accused was given all his rights and he was not intimidated, oppressed or assaulted during the interview. The accused also did not complain about anything after the interview. He was given his breaks and the interview lasted from 9am -1pm.The caution statement was marked as Prosecution Voir dire exhibit 01.

[6] In cross- examination the witness said he did not take the accused to see IP Munsamy before the interview. But he was taken to Munsami after the interview as he was the bailing officer.

[7] PW2 was Cpl Sanjay Deo the charging officer. On 16th November 2009 he was on duty and was instructed by IP Munsamy to charge the accused. The accused was given all his rights and no complaints were made to him by the accused. The charge statement was tendered as Prosecution voir dire exhibit 02. In cross- examination PW2 said IP Munsami was the crime officer at that time.

[8] PW3 was IP Munsami and he said his only role in this case was as a bailing officer. He did not meet the accused before the interview and he tendered the bail form as prosecution voir dire exhibit 03.In cross- examination PW3 denied meeting the accused before the interview. He also denied promising the accused to settle this case if he agreed about the offences during the interview. He was also cross- examined about meeting the lawyer for the accused and he clarified that he met the lawyer regarding another complaint.

[9] The defence called the accused to give evidence and he said he was called by DC Lagi to Police station. There DC Lagi took him to see IP Munsami who told him if he accepted everything he would settle the matter. After that he was interviewed by DC Lagi and due to IP Munsami's promise the accused admitted the offences.

[10] In cross- examination the accused said he was not assaulted or threatened and he did not complain to charging officer after he was charged. He also was questioned about a part of the interview where he denied stealing the money. The accused also said he did not read his charge statement before he signed it and said he complained about the promise to the Court nearly 2 years after the alleged incident.

[11] Both partied opted to file closing submissions after the hearing and the State in their submission argued that the accused has given his statement voluntarily and there was no promise given by IP Munsami.

[12] Now I would briefly consider the relevant law principles in this kind of application.

[13] The basic control over admissibility of statement was discussed in the judgment of Lord Hailsham of Marylebone in the decision of the Privy Council in Wong Kam-Ming v. The Queen (1982) A.C 247 at 261 (as cited in the Fiji High Court case of State v. Rokotuiwai – ruling on voir dire [1996] FJHC; HAC009r.95s (21 November 1996),

"The basic controls over admissibility of statement are found in the evidential rule that an admission 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] UKPC 16; (1914-15) AER 874 at 877. It is to the evidence that the court must for an answer to the voluntariness of the confessions".

[14]This rule was also strongly emphasized in the Fiji Court of Appeal case of Shiu Charan v. R (F.C.A., Crim. App. 46.83),

"First it must be established affirmatively by the Crown 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 (194) AC 599. DPP v. Pin Lin (1976) AC 574. Secondly, even if such voluntariness is established there is also need to consider whether the more general ground of unfairness exists in the way in which the police behaved, perhaps by a breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. Regina v. Sang [1979] UKHL 3; (1980) AC 402, 436@c-E".

[15] Madame Justice Shameem succinctly stated in State v. Rokotuiwai (supra) at pg. 4,

"It is for the prosecution to prove beyond reasonable doubt that the admissions are voluntary. I remind myself of that...It is essentially a matter of fact".

[16] In Miller V Minister Of Pension [1947] 2 AER Lord Denning explained the 'proof beyond reasonable doubt' as 'That degree is well settled It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of the doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor, which can be dismissed with the sentence "of course it is possible but not in the least probable", the case is proved beyond reasonable doubt, but nothing short of that will suffice.'

[17] All the witnesses called by the State denied IP Munsami gave a promise to the accused to settle this case. Their evidence were consistent with each other and the defence failed to raise doubt about them in the cross- examination.

[18] On the other hand the accused stated that he admitted these offences in the interview based on the promise given by IP Munsami. But then why again he incriminated himself in his charge statement? When this was raised in the hearing he said he signed the statement without reading which I find difficult to accept.

[19] Another ground that raises doubt about the defence's version was the time the accused took to inform the Court about this alleged promise by IP Munsami. He was first produced to the Court on 18/12/2009 but he informed the Court about this only on 16/11/2011 nearly after two years. The accused said he informed his lawyers about that and they failed to raise this in the Court which again I find not a satisfactory explanation.

[20] Based on the reasons mentioned above I am satisfied that the State has managed to prove beyond reasonable doubt that the accused gave his caution statement voluntarily.

[21] Therefore I decide that the caution statement of the accused is admissible in the trial proper.

24th April 2014

H.S.P .Somaratne
Resident Magistrate