Court excludes police statement due to Judges' Rules breach and inducement by promises.

[*96] 1971 December 7

( PIKIS, Do Jo)

IN THE DISTRICT COURT OP FAMAGUSTA

Police,

v.

Panikkos Andrea Kkala,

Accused.

(Case No. 5586/71).

Criminal Procedure - Evidence - Statements by accused persons to the Police - Principles upon which they may be admitted in evidence - Statement in the instant case ruled inadmissible because of breach of Rules 4(c) and (e) of the Judges' Rules - Moreover accused's version that the statement was, inter alia, induced by prompting on the part of the Police cannot be excluded.

Evidence - Statements by accused persons to the Police -

Principles upon which they may be admitted in evidence - See, also, under "Criminal Procedure".

Police Sergeant Hji Christos, for the Prosecution.

L. Clerides, for the Accused.

RULING

The following ruling was delivered by: -

PIKIS, D.J: Objection has been taken to the admissibility of a statement made by the accused to the police on two grounds.

(a) Breach of the Judges' Rules and in particular failure to comply with the provisions of Rule 4( c) and Rule 4(e) of the 1964 Judges' Rules and

(b) that the statement was not voluntary in [*97] that it had been induced by promises made to the

accused by a person in authority viz. an acting police sergeant, prosecution witness 1. In his final address learned counsel for the defence

relied on a third ground that Rule 4(b) of the Judges' Rules was also violated in that the statement was, inter alia, made because of prompting on the part of the police.

The principles upon which a statement may be admitted in evidence are well known and I need not repeat them in detail. It is for the prosecution to establish affirmatively that the statement is admissible. They must prove that it is voluntary in the sense that it is the offspring of the exercise of the free will of the accused. Any promise held out by a person in authority will taint the voluntariness of a statement unless it is shown that such inducement had no effect on the accused. The police in obtaining statements must comply with the provisions of the Judges' Rules which constitute regulations designed to ensure that fairness is exercised by the police authorities in obtaining statements from suspects. The Judges' Rules are not rules of law in the sense that their infringement will automatically justify the rejection of the statement. Breach of the Judges’ Rules confess a discretion on the Court to reject a statement. Such dis cretion must be exercised judicially in the light of the facts before the Court and a vital consideration is the likelihood of unfairness resulting from breach of the Judges' Rules. Another consideration is the duty of the Court to ensure that only reliable evidence is admitted. [*98]

In Cyprus Courts have shown to be particularly vigilant in watching police practices, concerning the taking of statements from suspects and have to, my mind, extended common law principles governing the admissibility of statements in a way intended to safeguard further the liberty of the subject in an effective way and ensure the observation of proper standards by the police. The combined effect of a number of decisions of the Supreme Court has been to impose a heavy burden on the prosecuting authority to be discharged before letting a statement in. The firm adherence of our Courts to the rule of law requires scrutiny of the circumstances under which a statement is obtained. In the case of Kokkinos v. Police (1967) 9 J.S.C. it was emphasized that if on the totality of the circumstances of the case it is made to appear that the statement was obtained under suspicious circumstances, irrespective of the violation of any concrete principle governing admissibility, the Court must reject the statement. To the same tenor is the decision in the case of Ioannides v. Republic (1968) 11 J.S.C. See also the case of Petri v. Police (1968) 4. J. S.C. 368. In the case of Petri all the surrounding circumstances under which his statement was obtained were subjected to great scrutiny and it was ruled that if the accused is placed at an unfair or disadvantageous position at the time of making the statement, his statement must be refused. In the case of Ioannides it was said, inter alia, that voluntariness is not the sole consideration that bears on the exercise of the Court's discretion. In the recent decision of the [*99] Republic v. Pierides (1971) 7

J. S. C. 1020, the Supreme Court was explicit in ruling that the safeguards against self-incrimination must be real and effective and not illusory. In the case of Pierides the Supreme Court upheld a departure from English decisions on the interpretation of Rule 3 of the Judges' Rules on a consideration inter alia of local conditions. With the above in mind I will approach the evidence before me.

On any view of the evidence it is a fact that the police failed to comply with Rule 4(c) and with Rule 4(e) of the Judges' Rules. The requirement to write down a prescribed text is not a mere formality. A text in writing makes a deeper and more permanent impression on the person making a statement. This is why great emphasis is placed throughout the Judges' Rules on a requirement that certain prescribed texts should as be recorded in writing. Further by reading or writing a text one is given time to reflect and become effectively reminded of his rights.

Coming the circumstances under which, the statement was obtained, I have the evidence of prosecution witness 1 and prosecution witness 2 the former the police sergeant who took the statement and the latter a police constable who together with the sergeant attested the statement as well as the evidence of the accused. Prosecution witness 2 had a very poor recollection of the circumstances under which the statement was made and his evidence is of very little value. In examining the statement of the

accused I am entitled to peruse its contents. It is permissible [*100] to do so in so far as its contents may shed light on

the circumstances under which it was obtained. This I have done and I have been struck by the following facts: It is in evidence that accused introduced his alleged desire to make a statement with the words: "I was drunk, I had no evil purpose". This assertion is hardly consistent with an admission on his part made shortly afterwards that he did place his hands inside the panties of the two young girls and squeezed their genitals. This admission is followed in the statement and reconciled with the allegation repeated by accused in his statement that he had no evil purpose. The two are truly irreconcilable . There is no suggestion that the accused was drunk at the time he was making this statement and surely a man of his age would appreciate how evil it is to do what he allegedly did. Moreover, none of the two complainants alleged that the accused squeezed their genitals. It is surprising to see such allegation appearing in this statement.

As to the circumstances under which this statement was made I am essentially left with the evidence of prosecution witness 1 and the evidence of the accused. When the matter rests purely on a question of credibility of the word of one man against that of the accused, the Court must be very careful before excluding the word of the accused. I find as a fact that there has been a breach of the Judges’ Rules. Moreover after careful consideration of the evidence before me having seen and heard the witnesses, I cannot exclude the version of the accused as to the [*101] circumstances under which this statement was made. His version is that the statement was induced by promises of trivial consequences in the event of making an admission and an early release from custody a matter of no little consequence in the case of a young soldier on temporary leave after long service. It is further his version that he was threatened with long detention if he refused making a statement. In view of the above, I rule that the statement is inadmissible.

Order accordingly.