Criminal confession inadmissible due to lack of voluntariness and failure of prosecution to prove free will beyond reasonable doubt.

[*711] 1972 June 19

(ARTEMIDES, D.J.)

IN THE DISTRICT COURT OF LARNACA

Police,

V.

Mustafa Ibrahim and Others,

Accused.

(Criminal Case No. 216/72).

Evidence - Confessions - Admissibility - Voluntariness - Principles applicable ~ Onus on prosecution to prove that a confession is voluntary - And whether a statement is admissible or not is a matter resting on judicial discretion to be exercised in the interests of justice - Surrounding circumstances, in the instant case, not free from suspicion as to whether statement was indeed the offspring of accused's free will - Court not satisfied, on the evidence, that the prosecution have discharged their onus of proof - Statement inadmissible.

Confessions - Voluntariness - Admissibility - See under "Evidence".

Inspector A. Epiphaniou, for the Prosecution.

H. Suleyman, for accused 1.

G. Achilles, for accused 2.

G. Nicolaides, for accused 3 and 4.

RULING

The following ruling was delivered by: -

ARTEMIDES. D.J.: Objection has been raised [*712] by the defence to the production of a statement made by accused 3 in reply to the formal charge made against him by the police. A side trial was held to decide the issue.

During the side trial P.S.N. Solomonides testified that before the statement to the formal -charge was made by accused, he had made a voluntary open statement. The defence counsel informed the Court that objection was raised to that statement as well. The side trial therefore was held to determine the voluntariness of both statements.

The reasons for which accused’s counsel alleged that the statements were not voluntary are, that accused had been maltreated or intimidated before he made the statements and further that the Judges Rules were not followed in taking the said statements.

The law with regard to the admissibility of a statement in evidence is now well settled after a line of authorities have been decided on this issue.

The onus to prove that a confession is voluntary lies with the prosecution. The burden of proof cast upon the prosecution is to satisfy the Court beyond any reasonable doubt that the confession was a voluntary one. If the Court entertains a reasonable doubt/the confession is not voluntary then it must be excluded from evidence. This principle has long been established and it has been re-iterated by our High Court in the case of Reg.v.Sfongaras

(1957) 22 C.L.R. p. 113. [*713]

Voluntary statement is a statement made by an accused person after the exercise of his free will. It is usually the offspring of his desire to tell the truth and hear the consequences or thus, confessing his guilt in order to free his heart from the burden of his had deeds. Therefore, any promise held out, or threat made, or maltreatment of accused by a person in authority made or exercised upon him will taint the voluntariness of the statement, unless it is shown affirmatively that the various inducements mentioned above had no effect on accused when making his statement.

The Courts have shown great concern and have been extremely vigilant in watching police tactics when talking a statement-confession from accused persons.

It is well known from long experience in trying issues with regard to the voluntariness of confessions that the police sometimes is showing extreme zeal in the detection of crime. This zeal sometimes leads them to objectionable methods in taking statements from accused persons. In those cases the Courts have been proved to be the guardian of the liberty of the subject and watch this human virtue with extreme interest and care. Judges have been zealous too in watching the liberty, honour and integrity of the citizens.

The above principles have been very lucidly put forward in my opinion, in the case of Kokkinos v. The Police (1967) 2 C.L.R.

217. The President of the Court had this to say (at p. 221). [*714]

"The voluntariness of all statements and particularly those containing a confession, is a matter which affects the liberty of the subject; and is connected with fundamental human rights, internationally recognised, embedded in our constitution: the right of corporal integrity; the right against degrading treatment; and the right to liberty and security of person with all the incidents thereto in connection with arrest".

The Courts have been so anxious is examining the circumstances under which a confession has been taken so as to exclude it from being accepted in as evidence if same has been given in suspicious circumstances. Therefore, if the surrounding circumstances in regard to the taking of the confession are not free 'from -suspicion same must be rejected. (See in this respect the case of Ioannides v. The Republic (1968)

11 J.S.C. P1321)

Whether a statement is admissible or not is a matter resting on judicial discretion. This discretion will be exercised according to the interests of justice. The Court has the right to reject a confession which has been proved voluntarily made, if the particular circumstances in the case demand it, On the other hand the Courts may accept in evidence a confession not taken in strict compliance with the Judges1 rules if the contents of same is proved to be true. With regard to the above the following extract from the case of R.v. Sykes 8 Cr.App. R.p.233, cited by Mr. Justice Hadjianastassiou in the Kokkinos case lays [*715] down the criteria on which the truth of a confession is examined.

"The first question you ask when you are examining the confession of a man is, there anything outside it to show it was true? is it corroborated? are the statements made in it of fact so far as we can test them true? was the prisoner a man who had the opportunity of committing the murder? is his confession possible? is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us?"

In examining the above, however, the Court should refrain at this stage to make findings of facts and assess the credibility of witnesses. This should only be made at such an extent as to decide the side issue i.e. whether the statement confession is admissible.

Having put forward hereinabove as briefly as possible, the principles applying to the question of the side trial, I now proceed to examine the surrounding circumstances regarding the taking of both statements from accused 3.

Accused was arrested on 8.8.1971 by the investigating constable in the case Andreas Sawides (P.W.1 in the side trial). A. Sawides was assisted in the investigations by P.S. Solomonides (P.W.2 "in the side trial"). A.Sawides is stationed at the Rural station, Larnaca, whilst accused was kept in custody at the Larnaca town police station. [*716]

A. Savvides said that he did not see accused between the date of his arrest and the 16.8.1971 when his reply to the formal charge was taken, apart from the night of the 12.8.1971 when accused gave his alleged open voluntary statement. A.Savvides had returned with N. Solomonides from Avdhellero village, where they went in connection with the investigations in the present case. The time was about 9 to 9.30 p.m. N. Solomonides then by a coincidence visited the cell in which accused was kept. Immediately accused saw him he decided to make a clean breast from his guilt. He told him that he wanted to tell him everything. Whereupon, and after having been cautioned, he was escorted to the officewhere A. Savvides was and he made a statement on which, being completely illiterate, he put his thumb finger on.

The story of accused, however, is completely different. He said that he was taken from his cell on the before the above two policemen, who asked him to confess. They told him that Costas Anastassi P.W,6, had given a statement in the same afternoon, in which he implicated him as being one of the persons who received the stolen animals. Accused replied that he know nothing at all about it. Whereupon A. Sawides started hitting him on the neck and N. Solomonides put pencils between his fingers and pressed them on to them. Accueed demonstrated to me the pencils torture.

He insisted that he knew nothing. He was taken back to his cell from where he was escorted at about [*717] midnight again before the two policemen, who repeated the above procedure. Accused's finger thumb was then pressed onto a statement already prepared. Accused maintains that the statement was not read to him neither he knows its contents. He knows, however, that it must have been a statement which implicated him as being a guilty person.

On 16.8.1971 accused under the threat that he would suffer the same things as before he was forced to put his finger thumb on the reply to the formal charge.

Antonis Sarmallis (P.W.3 in the side trial) corroborates the allegation of accused. He said that on the 16.8.1971, whilst he was returning with his car to his village from Chrysorroyiatissa religious fair, he picked up accused I) - and 3, who had just been released from custody, and gave them a lift to their village. Both accused complained to him what they had suffered during their remand in custody. Accused 3 had shown to him his fingers which were still black from the squeezing onto the pencils.

A.Sarmallis further testified that A.Savvides, a few days before, had stopped him in order to report him for a traffic offence. He then intimidated him that he would lock him in and do him worse than he did to accused, if he would appear and. give evidence in regard to the complaint accused had made him. A.Sarmallis immediately after that went to Chief Inspector of Police X.Ropalis (P.W.4 in the side trial) to whom he complained about the frightening remarks of A. Savvides. [*718]

Chief Inspector X.Ropalis has given evidence in Court and admitted that A.Sarmallis complained to him1 against A. Savvides, although he did not agree that A. Sarmallis told him that the frightening remarks of A. Savvides were to the effect that he should not give evidence in the present case.

Rebutting evidence have been called by the prosecution to the evidence of A.Sarmallis. P.C.Georghios Stylianou (P.W.5 in the side trial), said that he was present when A.Savvides stopped the car of Sarmallis to report him for a traffic offence. A. Savvides did not intimidate in any way A.Sarmallis, on the contrary A.Sarmallis was very impolite to A.Savvides and even told him that he would see that he is transferred to Paphos.

Now the following observations could be made on the above evidence.

It is indeed very curious that accused who was in custody from the 8.8.1971, suddenly in the night of the 12.8.1971 at 9.30 p.m. expressed his wish to make a voluntary statement to P.S Solomonides who had entered his cell by some coincidence. A. Savvides who only saw accused twice during his remand i.e. on the 12.8.1971 and 16.8.1971 had managed on his first incidental visit to the Larnaca police station to extract from accused the truth. The other coincidence with the statement of the 12.8.1971, is that accused expressed his wish to make it when both policemen had 3ust arrived from Avdhellero village where they went to investigate the case. Further in the afternoon of the same day Costas [*719] Anastasi had -given a statement to them in which he implicated accused. All the above surrounding circumstances are indeed not free from suspicion as to whether the statement of accused was indeed the offspring of his free will.

I have examined very carefully the evidence with regard to the issue of the side trial and I am not satisfied from it that the prosecution have discharged their onus of proof. Indeed accused’s story is more probable than the story put forward by the prosecution.

A.Sarmallis and Chief Inspector Ropalis corroborate the allegations of accused whilst P.C.Stylianou is apparent that he is not telling the truth. His evidence is unnatural and I do not believe that he was near A.Sarmallis whilst he was being reported by A.Savvides for the traffic offence. As is usual in cases for checking the traffic, he must have been away from the vehicle which was being checked, directing the other traffic on the road or checking another vehicle. A.Sarmallis supports this view in his evidence.

I have perused very carefully, for the purpose of deciding the issue, the alleged statement made by accused. In perusing same I had in mind the case for the prosecution presented so far, without however deciding at this stage the credibility of the witnesses. It is apparent that the only evidence implicating accused is that of Costas Anastasi. The rest of the evidence do not throw much light on the case. The confession of accused was therefore necessary for their conviction. As I have said already, Costas Anastasi [*720] gave a statement to the police in the same afternoon and before accused made his alleged statement at 9.30 p.m. It was by then that the investigating officers knew the material facts and had the necessary evidence to force accused to give his alleged voluntary statement.

P.C. A. Savvides admitted that during the course of the trial he visited accused and offered him to make him a prosecution witness, thus withdrawing the charge against him* He was acting on the instructions from the office of the Attorney-General. Accused rejected the proposal saying that he would continue standing his trial. According to accused’s testimony he repeated in his reply to the proposal that since he knew nothing about the case he could not testify.

The proposal shows how the prosecution feels about the weight of the evidence it has and the firm position accused is holding.

For the reasons I have endeavoured to put forward above I find that the statement of accused made on the 12.8.1971 is not a voluntary one and I would therefore not allow its production in evidence.

Now in regard to the statement made on the 16.8.71 i.e. the reply to the formal charge I have to observe the following: Accused says in it that whatever he had to say lie said it in his voluntary statement. Further he says "Εν ήξερα ότι ήταν κλεψιμιές" [*721]

Since his voluntary statement has been rejected than the Court could not he referred to it. In fact this statement is inconsistent with the previous one in which it is alleged to have admitted that he knew the animals to have been stolen. A. Savvides said that he was alone in the office when he took from accused the statement in reply to the charge. P.S. Solomonides, however, contradicts him. He says that he was present and in fact helped accused to put his finger thumb on it. Yet he had not countersigned the statement. In the circumstances I would rule out that statement 'as well. The submission of counsel for accused 3 is therefore upheld.

Order accordingly.