Confession obtained via unfair interrogation using accomplice evidence is inadmissible under Judges Rules.

[*344] 1979 September. 26

(PIKIS, P.D.C., CHRYSOSTOMIS, S.D.J., MICHAELIDES, D.J.)

IN THE ASSIZE COURT OF FAMAGUSTA SITTING

AT LARNACA

Republic,

v.

Andreas K. Boyadji and Others,

Accused.

(Criminal Case No. 1898/79).

Evidence - Confessions by persons in custody - Voluntariness - Admissibility - Interrogation of suspect for 1½ - 2 hours on basis of implicating evidence from self-confessed accomplice - Suspect admitting commission of offence notwithstanding his initial denial - Process of interrogation unfair - Judges Rules infringed through failure of Police to put accused properly on his guard - Confession inadmissible.

A. Angelides, Counsel of the Republic, on behalf of the Attorney-General, for the Republic.

A. Mathicolonis, for Accused 1 & 2.

E. Efstathiou, for Accused 3.

All accused present.

DECISION

The decision of the Court was delivered by:-

PIKIS, P.D.C.:- The question that [*345] must be resolved is whether a written statement made by accused 2 on 3rd April 1979, while in custody, is admissible in evidence. This Statement is closely connected with another oral statement that preceded it whereby accused volunteered to make a written statement and tell the truth.

It is the case for the prosecution that the statement was obtained strictly according to rule, there being nothing to fault it. A police officer and two police constables testified about the manner and circumstances under which the statement had been obtained. We are not going to reproduce in any great detail their testimony except briefly mention the relevant sequence of events as they emerge from the evidence of prosecution witnesses.

Accused 2 was arrested at about 9:30 a.m. on 3rd April 1979, following a search at his house, a search albeit that revealed nothing incriminating. The accused was conveyed to a Larnaca police station where, in the contention of the police, after an interrogat ion lasting between 1½ to 2 hours, the accused, on his own volition and without any prompting from the police volunteered to make an incriminating statement notwithstanding his earlier denial of complicity in the commission of the offence under trial. All three police officers categorically

denied that any promises were given to the accused of any [*346] kind or that any improper means were employed to make accused

succumb and give a statement.

The accused maintained that shortly after his arrest accused 1 was allowed to see him at the police station in the course of which meeting accused

1 encouraged him to make a statement, telling him that he would not be prosecuted thereafter. He gave weight to these assertions knowing, as he said, that accused 1 was a police collaborator. Thereafter P.C. Tchielepis reaffirmed the above and participated in this allegedly concerted police effort to obtain a confession from accused 2.

Accused-1 supported on oath the case for accused 2. The aforementioned police officers denied taking part in any such venture and the investigating officer who was throughout that morning with accused 2 refuted any suggestion that accused 1 and 2 came into any contact.

To summarize, it is the case for the accused that the police used devious methods to trap accused 2 make a statement, including promises given by police constables who were engaged in the investigation of the case. In fact accused 1 maintained that the police had, from the previous night, laid down a specific plan in order to ensure that accused 2 would, the following day, be trapped to make a statement.

We have examined the evidence before us with very great care. It is, as it has been authoritatively [*347] decided, for the prosecution to prove positively and affirmatively beyond any

reasonabledoubt that the statement is voluntary and admissible. (See R. v. Sfongaras, 22 C.L.R 113 and Ioannides v. The Republic (1968) 2 C.L.R. 169). The crucial

question is whether the statement is voluntary, that is whether it is an expression of the unfettered choice of the accused, a product of freedom of expression. In Cyprus, perhaps more than other countries of the Commonwealth, our Courts are ultra vigilant in ensuring compliance with certain strict standards on the part of the police designed to safeguard due process of the law. (See Kokkinos v. The Police (1967)

2 C.L.R. 217, Petri v. The Police. (1968) 2 C.L.R. 1.)

In determining the question of voluntariness regard should be had to the provisions of the Judges Rules that are designed to ensure that police statements are obtained in circumstances that the statement is free and voluntary. The Judges Rules establish the framework necessary to ensure that a statement is truly voluntary.

In evaluating the evidence before us we must, as stated in the case of Ioannides, do so, conscious of our responsibility to keep an open mind about the credibility of witnesses particularly the accused until the end of the day. And this we have done to whatever extent it is humanly possible. Having carefully weighed the evidence we accept that the statement [*348] was obtained in the circumstances described by P.C. Philippou and reject contentions to the contrary. Our findings do not absolve us of the duty to decide whether the police were right in interrogating the accused under rule II of the Judges Rules and not proceeding under rule III notwithstanding the fact that the point was not taken up by the defence. It emerged from the evidence that accused 1 had made a statement the previous night incriminating accused 2 and following that he allegedly delivered certain articles to the police that probably strengthened the belief of the police in the veracity of his evidence. Should the police in such circumstances and being in possession of such evidence refrain from questioning the accused under rule II of the Judges Rules? The decision in Republic v. Pierides

(1971) 2 C.L.R. 181 establishes that rule III should be invoked in all circumstances where there is enough evidence in the hands of the police that would justify the preferment of a charge notwithstanding the fact that accused had not, up until then, been formally charged. The tenor of the judgment in Pierides and the wider principle emerging therefrom is that the police should not, in their investigations, in any way trap the accused into making an admission. Now it can be argued that the evidence then in the possession of the police did not, of necessity, justify the preferment of a charge against the accused considering that it presumably emanated from a self-confessed [*349] accomplice. No hard and fast rule can be laid down as a universal guide. But the fact remains that when the police are in possession of evidence incriminating a suspect and they refrain from charging him they should go about questioning him with great circumspection, for obviously if they use the evidence in their hands in order to make him believe that all is up for him then surely the spirit of the Judges Rules, if not their letter, is infringed. In this case we don’t know what use the police had made of the statement of accused 1 while interrogating accused 2. However, considering the length of the interrogation examined in juxtaposition to the isolated event in relation to which he was being questioned we can justifiably infer that they made full use of material then in their hands. So we have this spectacle of the police interrogating a suspect on the basis of evidence then in their hands who, notwithstanding his initial denial, came round to admitting the offence after an hour and a half to two hours' interrogation. In such circumstances we are definitely of the view that the process of interrogation smacks of unfairness to a degree that justifies us to rule that the Judges Rules had been infringed because of failure of the police to put the accused properly on his guard. In the exercise of our discretion we reject the statement feeling unable to conclude that this deviation from the Judges Rules had no bearing on the accused deciding to make a statement. The objection is, therefore, sustained.

Objection sustained.