Court of Appeal of Fiji

[22] However,ever, the Appellant once again challenged the voluntariness of the caution interview at the trial proper wanting the question of voluntariness to go before the assessors. Before analysing the defence evidence on voluntariness given at the trial, I shall deal with such evidence presented at the voir dire inquiry as it will have a significant impact on the credibility or otherwise of the defence version of events as narrated at the trial. The allegations of assault were repeated on the same lines at the trial as well.

Assault on the Appellant

[23] According to the Appellant he was assaulted by the police at the following instances. His narration goes as follows:

(i) Sergeant Suliano punched him on the head inside and outside the house after the arrest and again on their way to the police vehicle on 13 March 2010 asking where the girl was. Defence witnesses Sekoula Tawake and Sailasa Naucukidi said that they saw the Appellant being assaulted by the police in this instance.

(ii) The police officers at the vehicle started punching him on the stomach and once he got inside the vehicle they punched him throughout the journey to the police station.

(iii) Upon arrival at the police station he was kicked on his thighs and punched on his ribs and the head for about 15 minutes before being put to the cell. He was kicked on the back while being put to the cell. Throughout this ordeal, the police kept asking him where the girl was.

(iv) After breakfast once again he was taken out of the cell and punched on his side and the stomach by PC Manoj. The police officer had told him that he was the one who had raped the girl. At the end he was kicked into the cell.

(v) On the following day, Sunday after lunch PC Navinit came up to the cell and told the Appellant that he was going to be interviewed and asked him to ‘make things easy’ and admit that he committed the act of rape. When he denied the police officer spat on his face.

(vi) Police officers Navnit, Kamal and Suman punched him on his side, back of the head and leg using even a hose pipe during the period of 20 minutes when he was taken to a room for the caution interview in the absence of the interviewing officer PC Niumaia. PC Niumaia returned later and spoke harshly to him and asked him to ‘make it easy’ and warned that he would face something even harsher if he made the interview difficult. Niumaia then told him the ‘whole story’ and simply asked him to admit to it. Thus, he admitted to everything said by PC Niumaia.

(vii) Halfway through the caution interview the Appellant was taken out for the reconstruction of the scene. During the travel to the scene and after getting down from the vehicle Navnit and Kamal punched him on the side, head, stomach and leg saying that he is the one who did the act. Kamal used a stick. At the scene, PC Niumaia once again told him the ‘story’ and pointed out the places to him and he agreed to everything because of the harsh treatments he had to endure for two days. Even while Niumaia was speaking to him and during the journey back to the police station, he was assaulted by Navnit and Kamal for 30 minutes.

(viii) After the caution interview was concluded the Appellant was asked to sign on the document which he did and he was the handed over to Navnit. Police Officers Kamal and Suman then returned. Having asked him to lie down on the floor Suman poked his stomach with a pinch bar and kicked his private parts when in upright position. Kamal also hit his legs and back with a hose pipe. At the end Navnit kicked him into the cell.

[24] The narration goes that the Appellant walked to Nasinu Magistrate Court from the police station for about 250 meters dragging his feet on 17 March 2010 accompanied and even helped by PC Alwin Kishor Kumar who was known to him. His sister, Mereani Radrodro had come to see him and he was allowed to speak to her by the police officer. He showed her the marks on several parts of the body resulted from the police assault and told her what happened. She touched the back of his swollen head. In court, he had got up with the help of a chair to make it to the accused box and could not walk properly due to the beating by the police. Mereani Radrodro gave evidence to the effect that she met the Appellant outside the court and saw marks of an assault on his body.

[25] When the case was called he walked to the accused box with difficulty due to pain, leaned against the box and pleaded guilty to the charge. On the way back too he walked to the police station from the court and was taken to Korovou Prison.

[26] All the police officers denied the suggestions of assault under cross-examination.

[27] I shall now turn my attention to some crucial matters arising from the Appellant’s evidence at the voir dire inquiry, particularly under cross-examination.

(i) The Appellant admitted that he had been asked by PC Niumaia prior to the commencement of the caution interview whether he wanted a Lawyer to be present and he had declined the offer. There is no credible explanation for this action or even omission by the Appellant.

(ii) There was no complaint whatsoever on his part as to the language used at the interview. Language was not raised as an issue at all. His position was that he simply agreed to all what the police officer said due to the beating he got at the hands of the police. In that context, whatever the language used could not have mattered anyway or made any difference to his position.

(iii) He had admittedly not told any of the police officers at any stage what made him run in that night namely that he was punched by an unknown person whom he suspected to be a robber. He had only told them that he was returning after buying alcohol. However, the police did not find any bottles of beer on the ground at the scene though, according to the Appellant, two bottles had fallen to the ground. No witness from the house where the Appellant was arrested gave the police any bottles of beer to substantiate his position though he claimed to have carried two bottles with him in a bag to the house.

(iv) He had admittedly not told PC Niumaia who had not assaulted him or any other police officers who had served him meals and tea that he had been assaulted by Navnit, Kamal and Suman: not even to PC Alwin Kishor Kumar who was known to him for some time.

(v) PC Alwin Kishor Kumar who knew the Appellant before said in evidence that the Appellant had no difficulty in walking to and back from the court and he did not have to help him.

(vi) There was no reason attributed for the police assault at the scene of reconstruction or thereafter as the Appellant had already admitted to rape in the first part of the interview and was willing to corporate with the police at the scene and there was nothing to indicate that his attitude was going to be any different in the second half of the interview.

(vii) The Appellant had not complained to the Magistrate of any assault and sought medical attention. He had not made any complaint to the authorities at Korovou Prison and sought medical treatments. In fact, the Appellant had not sought a medical examination at any stage. Nor had he ever sought any treatments. His sister Mereani Radrodro, having allegedly seen the evidence of assault and pain the Appellant was in, had not though it fit and necessary to bring it to the notice of any authority. Appellant’s first cousin, Sailasa Naucukidi and his aunt, Sekoula Tawake too had not informed any authority of an assault on the Appellant by the police.

(viii) According to the Appellant and his sister Mereani Radrodro the Magistrate had no difficulty in observing the Appellant’s physical disability or pain in him, if any, in the court. There is no evidence or record to indicate that the Magistrate had seen any such physical impairment in the Appellant.

(ix) Thus, the Appellant’s allegations were neither substantiated nor corroborated by any independently verifiable evidence. Moreover, the actions and omissions of the Appellant and his relatives are not consistent with such a persistent beating as described by them at the hands of the police and their testimony on its own did not stand as credible.

[28] There are even more crucial matters arising from the Appellant’ evidence under cross-examination at the voir dire inquiry on the voluntariness of the caution interview.

(i) The Appellant admitted that he did not give answers to questions 23, 24, 25, 26, 27, 29, 30, 31, 34, 35, 36, and 37 in the caution interview voluntarily and the answers to other questions were given willingly. In other words the answers to question 01 to 22 and 28 in the caution interview had been admittedly given willingly by the Appellant.

(ii) I quote from questions 1 to 7 and answers given as admitted by the Appellant in the caution interview.

Q1: In which language do you wish to be interviewed with?

A: English

Q3: Can you sign to acknowledge that you wish to be interviewed in English

A: Yes sign accused: J. Lulu sign wit: DC 3454 Niumaia

Josateki Lulu I am Detective Constable 3454 Niumaia of Valelevu Police Station wish to interview you in an allegation that you on 13^th day of March, 2010 at about 2.00am at Laquere 7 miles you raped one Swastik Sharma. “You are not obliged to say anything unless you wish to do so but whatever you say may be put into writing and given as evidence.”

Q4: Do you understand the above allegation and the nature in caution put to you?

A: Yes

Q5: Can you sign to acknowledge that you have understood the above allegation and that has been read out to you?

A: Yes sign accused: J. Lulu sign wit: DC 3454 Niumaia

Q6: Do you wish to consult a lawyer a solicitor a family member or a friend to be present here in this interview?

A: No sign accused: J. Lulu

Q7: What can you say about the allegation?

A: Yes it’s true.

(iii) This necessarily means that the Appellant had wanted English as the language for the caution interview, understood the allegation against him as one of rape, not wanted a lawyer or a family member to be present and even admitted the charge of rape against him.

(iv) On the other hand after all the beating administered upon him by the police obviously to get him to admit to having committed rape on the complainant, the Appellant in the second half of the caution interview had not admitted having penetrated the victim’s vagina with his penis but only having sucked her breasts and licked her vagina. This discredits the Appellant’s position that prior to the caution interview he was assaulted and forced by the police officers to admit to the rape of the complainant. If the caution interview had been forced upon the Appellant the police would not have stopped recording any admission falling short of rape.

(v) On the other hand the aforesaid answers of the Appellant under cross-examination at the voir dire inquiry cast serious doubt on the credibility of his position at the trial of having not understood the contents of the caution interview as it had been taken down in English. Had the Appellant not understood what had been recorded in English how could he have looked at the caution interview in the witness box at the voir dire inquiry and selected some answers as willingly given and the others as not voluntarily given. Further, the Appellant had been able to leave out question number 28 and the corresponding answer (on whether he was drunk at that time) as having been willingly given among questions numbering 23 to 37 and the answers thereof which he ruled out as not having been voluntarily given. This could be possible only if he had understood the contents of the caution interview fairly accurately. It is also in evidence, unchallenged, that the Appellant whilst in police custody had requested and the police had bought a copy of Fiji Times at his expense, which is an English Newspaper on 15^th Monday. Would he have requested Fiji Times had he not been sufficiently proficient in English?

(vi) Moreover, PC 3454 Niumaia’s unchallenged evidence at the voir dire inquiry is that the Appellant wanted to be interviewed in English and was interviewed in English. Not even a suggestion had been put to the contrary.

(vii) It is PC Navnit’s unchallenged evidence at the voir dire inquiry that he charged the Appellant after the caution interview was over in English because he wanted to be charged in English. The police officer had offered the Appellant the right to have lawyer, family member or friend but he did not want to exercise his right. In any event the Appellant had not said anything in response to the charge.

[29] Considering the above circumstances, I do not think that the Appellant’s argument that he made the caution interview as a result of the persistent assault by the police and therefore, not voluntary can hold water. It is not substantiated by any credible evidence. His own admissions at voir dire inquiry go contrary to that assertion. Therefore, his second challenge at the caution interview at the trial proper could be attached with little credibility in the light of the above matters to the contrary and his unequivocal assertions under oath at the voir dire inquiry.

[30] In the circumstances, I agree with the ruling of the Learned High Court Judge that the prosecution had proved beyond reasonable doubt that the Appellant had made the caution interview voluntarily and he had not been assaulted, ill-treated or oppressed.

[31] I also agree with the Learned High Court Judge’s finding that there is no evidence of any breach of rights under Judges Rules and Article 9(2), 10(1) and 14(3)(g) of the International Covenant on Civil and Political Rights during the caution interview.

Trial Proper

[32] I shall now turn my attention to the trial proper and the prosecution evidence. At the trail the defence did not challenge the act of rape on the Complainant. Neither did the counsel challenge her evidence on the mobile phone. According to her evidence the handbag she was carrying at the time of the incident had been given to her mother by the police when she went to the police station. On Monday having searched her hand bag and not finding the mobile phone she was using at the time of the incident, she had asked her mother about the phone. Her mother, Romila Sharma had then called the police and inquired about the phone. The police had promised to get back and later come home and given them a Nokia phone which the Complainant identified as the one she was using just prior to the incident of rape because it had all her massages. She identified it in court as well.

[33] Pritesh Pratap and Vikash Sharma basically corroborates the Complainant’s version of events up to the point where she had been held and dragged away by a stranger while she was still talking to Pritesh over the phone. Romila Sharma’s evidence also goes to corroborate the injuries seen on the Complainant’s body and the police coming home and handing over the Nokia phone with all the saved contacts intact.

[34] Aziz Hussain corroborates the Complainant on her having been dragged to a bushy side of the main road by a Fijian man in that night and her having called for help. He also corroborates the police version of searching the area, finding lady’s bag/purse and later seeing a person running away while the police were on the search from two sides. According to him there were some other people drinking at or about the place who had heard somebody crying for help. The police had not arrested any one of them except the man seen running away.

[35] Sergeant Suliano J. Saunitoga 2179, Woman Sergeant Sunita Devi, PC 3454 Niumaia Sworn, PC 2577 Suman Deo, PC Alvin Kishor Kumar, Dr. Litia Narube and PC 3172 Navneet Chandra also gave evidence. Sergeant Sulaiano had found a handbag at the scene which was later given to Romila Sharma. A lady’s underwear had also been found at the scene. All of them were cross-examined on the allegation of assault on the Appellant at different times during the time he was in the custody of the police. All of them denied the allegation of assault. The evidence of police officers by and large was on the same lines as their evidence at the voir dire inquiry. Medical evidence corroborated the Complainant’s allegation of forceful sexual intercourse.

Complainant’s mobile phone in the Appellant’s possession?

[36] PC Navneet Chandra had searched the Appellant at about 2.40 a.m. on 13 March 2010 and taken cash, a mobile phone and a wrist watch from his possession and entered them in the Cell Book. He had answered the complainant’s mother’s call inquiring about the mobile phone identified as 1200 Nokia on the 15^th Monday and he could then recollect a similar phone having been recovered from the Appellant which had been take away by the Appellant’s wife. He in evidence referred to the Cell Book entry where, however, Vodaphone mobile phone and Nokia mobile phone had been written and the latter had been cut off with a single line. Thereafter, he along with PC Kamal had gone and met the Appellant’s wife in Muanikoso settlement and taken her to Vunivaivai settlement where she had handed over the phone given to her by the police earlier. Suspecting that it may not belong to the Appellant they had taken it to the Complainant. The Complainant had identified it as the phone she was using just prior to the incident. He identified the phone marked through the Complainant at the trial as the phone recovered from the Appellant and given to his wife later. It appears that the police at that time had not been aware that the mobile phone found in the possession of the Appellant did not belong to him but to the Complainant, for otherwise they may not have parted with it to the Appellant’s wife.

[37] The Defence cross-examined PC Navneet on the basis that he took only a Vodaphone mobile phone from the Appellant which was given to the wife of the Appellant when she visited the police station. The witness also said that what he recovered was a Nokia phone with a Vodaphone sim card. Then, he attempted to explain that crossing of the Nokia mobile phone was a mistake. In other words, the defence position was that the Complainant’s mobile phone was not recovered from the Appellant’s possession. Thus, there seems to be some inconsistency in PC Navneet’s evidence in this regard.

[38] However, the following matters cast doubt about the denial of the Appellant having had in his possession the mobile phone of the Complainant.

(i) Nothing on those lines was suggested to the Complainant, for if the Appellant’s position is true, the Complainant’s evidence as to the recovery of her phone cannot be entirely true.

(ii) The defence suggested to PC Navneet that they came to get the phone from the Appellant’s wife after finishing the reconstruction of the crime scene on Sunday the 14^th and they took her to Vunivaivai settlement in the same jeep where the Appellant was seated and not on Monday as maintained by the witness. The Appellant and Akosita Bula, the Appellant’s wife also took up the same position. Alumeci Watitukana, the Appellant’s brother also said that the police came on Sunday.

(iii) However, the Appellant whilst giving evidence under oath at the voir dire inquiry not only failed to mention that after reconstruction of the scene the police officer took him to see his wife but specifically said that all of them came to the police station after visiting the crime scene. In other words the Appellant did not even remotely indicate that he had any knowledge of the recovery of the phone from his wife by the police at the voir dire inquiry.

(iv) Mereani Radrodro, the Appellant’s sister giving evidence at the trial whilst falling in line with the Appellant and his wife that the police came on Sunday and took Akosita Bula away asking for the phone, however said that upon returning from Vunivaivai settlement Akosita had said that she did not know of any phone. This evidence does not tally with those of the Appellant and his wife.

(v) Akosita Bula maintained that she had not checked the plastic container where the phone was after the same was given to her by the police until the police came and took her to Vunivaivai settlement where she had given the same container to the police. According to her PC Navneet took the phone out and gave it to her and it was a Vodaphone mobile phone belonging to her father-in-law. The Appellant testified that what his wife had in her hand was the Vodaphone phone the police took from him in the night of the incident and that phone belonged to his father. No defence witness said that the phone taken from the wife was once again given back her by the police. Yet, when the prosecution cross-examined the Appellant whether his father still had that phone the Appellant said that his father had changed it and never produced it in court. Nevertheless in a surprising move the wife of the Appellant sought to produce a Vodaphone mobile phone purportedly belonging to her father-in-law at the trial stating that that phone was the one given to her by PC Navneet. Though objected to by the prosecution, she was allowed to produce it by the Learned Trial Judge as D1. It is pertinent to mention that no phone of Vodaphone make was shown to any of the police officers by the defence at the trial. PC Navneet, of course, identified the Nokia mobile phone marked as P2 recovered from the Appellant and identified as her phone by the Complainant in the course of his evidence. Akosita Bula further emphatically said under cross-examination that D1 was always with her father-in-law and was never lost. Thus, the defence position that the police in fact recovered the Vodaphone mobile phone belonging to the Appellant’s father from the Appellant’s possession in the night of the incident seems to be an afterthought and D1 seems to be a late introduction to negate the inevitable inference arising from the possession of the Complainant’s mobile phone by the Appellant.

(vi) In the circumstances, I am convinced that the Nokia mobile phone recovered from the Appellant in the night of the incident from the Appellant was the Complainant’s phone she was using at the time or just before the incident.

Language of the caution interview- English or Fijian?

[39] There is nothing on record to indicate that the Appellant had given evidence at the trial in any other language other than in English, for when he gave evidence at the voir dire inquiry it had been specifically recorded that evidence would be given in Fijian language and translated by the court clerk. At the trial the Appellant had given lengthy evidence and subjected to intense cross-examination too. If he had given such evidence in English at the trial there cannot be any incompetency on his part to comprehend English. But, I am not proceeding on that assumption for my conclusions.

[40] Be that as it may, however, quite contrary to his position at the voir dire inquiry (in fact he never raised any issue with regard to the language) he took up the position that he knew only a little bit of English and told PC Navneet that he preferred a Fijian Officer to caution interview him in Fiji because he would rather ‘speck in Fijian’. Thus, PC Niumaia, being a Fijian Officer was tasked to interview him. He admits that he was given the right to have lawyer or a family member to be present at the interview but he declined both. Then, according to him all questions had been put to him in Fijian. He said that PC Niumaia then put the ‘story’ to him which he simply admitted as by that time he had been subjected to persistent assault for 02 days and he had been asked to ‘make it easy’ by the police officers or to face reprisals. After the reconstruction of the scene, the second part of the caution interview also had been conducted in Fijian. At the end he was given the caution interview to sign but not given time to read. He signed it though he realised that it had been recorded in English and he could not understand the contents in English. Under cross-examination the Appellant admitted that PC Niumaia, however, translated the interview in Fijian.

[41] PC Niumaia in examination-in-chief at the trial said that the Appellant elected to be interviewed in English and when offered he declined to have a lawyer or a family member to be present at the caution interview. In cross-examination, it was suggested to him that the questions were put to him in Fijian and he translated them into English without the Appellant’s knowledge for the record. The witness admitted it. Under re-examination the witness once again said that the interview was conducted in English and explained the questions in Fijian and the Appellant fully understood them.

[42] Thus, it appears that both languages had been used in the caution interview. Given the Appellant’s evidence at the voir dire inquiry referred to earlier, I do not think that he had any difficulty in understanding English. In any event he had them translated in to Fijian by PC Niumaia himself. Therefore, I am not convinced that any material prejudice had been caused to the Appellant in this process. The Appellant had brought up the language issue at the trial in order to impeach the credibility of the caution interview as what he has mentioned therein directly implicates him in an act of rape under section 207(2)(b) of the Crimes Decree, 2009 though not charged in the Information. But what he has admitted is sufficient to bring home the charge under 207 (2) (a) of the Crimes Decree, 2009 in conjunction with the Complainant’s evidence corroborated by medical evidence. Therefore, when the caution interview had been already admitted after the voir dire inquiry the Appellant had to challenge it on some other basis and he chose it to be the language. However, in my mind his challenge to the caution interview on that basis has little credibility.

[43] In any event, when he took up the position at the trail that he admitted all what PC Niumaia said, smarting as he was from the beating at the hands of the police for two days, it would not have mattered whether the caution interview or the admissions therein had been recorded in English or Fijian. Even from that point of view, the challenge to the caution interview based on the contention of ‘English or Fiji’ would not ultimately have a significant bearing on its voluntariness, credibility and weight.

Summing Up

[44] I shall now turn to the summing up of the Learned High Court Judge vis-à-vis the grounds of appeal.

Ground (i) - ‘Circumstantial evidence regarding time’

[45] The Learned High Court Judge inter alia had directed the assessors on circumstantial evidence on the following terms

“In circumstantial evidence, you are asked to piece the story together from witnesses who did not actually see the crime committed, but give evidence of other circumstances and events, that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime.”

“In drawing that inference, you must make sure that it is the only inference that could be drawn, and no other inferences ... could have been possibly drawn from the said circumstances. That should also be the inescapable inference that could be drawn .... in the circumstances.”

“It is not sufficient that the proved circumstances are merely consistent with the accused person having committed the crime. To find him guilty you must be satisfied so as to feel sure, that the inference of guilt is the only rational conclusion that could be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt, that the accused person committed the crime.”

[46] In Lole Vulaca and two others v. The State Criminal Appeal No.AAU0038/08: 29^th August 2011 [2011 FJCA39] the Court of Appeal found no error in the summing up of the trial judge where he had said inter alia

“Remember that in considering circumstantial evidence you must be satisfied beyond reasonable doubt that the only reasonable inference available to you is the guilt of the Accused before you can find them guilty. If you find that there are other reasonable inferences you can draw which are consistent with the Accused’s innocence or if you have a reasonable doubt about it, then you should find each not guilty.”

[47] The Supreme Court held in Senijieli Boila v The State (Criminal Appeal No. CAV005 of 2006S: 25^th February 2008) that

“What is required is a clear direction that the tribunal of fact must be satisfied of the guilt of the accused beyond reasonable doubt (McGreevy v Director of Public Prosecutions [1973] 1 WLR 276, applied Kalisoqo v R Criminal Appeal No. 52 of 1984). See also R. Hart [1986] 2 NZLR 408. The adequacy of a particular direction will necessarily depend on the circumstances of the case.”

[48] It appears that the High Court Judge has not addressed the assessors in the summing up that if there are other reasonable inferences the assessors can draw consistent with the accused’s innocence or if they have a reasonable doubt about it, then they should find him not guilty, as sanctioned by the Court of Appeal in Lole Vulaca’s case. In other respects the direction of the High Court Judge is blameless.

[49] In should be noted that the Court in Lole Vulaca’s case has not considered the decision in McGreevy v. D.P.P [1972] 57 Cr. App. R. 424, P.C. where it was held that where the prosecution case is based on circumstantial evidence, there is no rule which requires the judge as a matter of law, to give a further direction that the jury must not convict unless they are sure that the facts proved are not only consistent with guilt of the accused, but also such as to be inconsistent with any other reasonable conclusion. Therefore, the direction approved in Lole Vulaca’s case is not a sine qua non in every circumstantial evidence case.

[50] I am of the view that on the facts and circumstances of this case the High Court Judge has adequately directed the assessors on how they should approach the circumstantial evidence. What is required is a clear direction that assessors must be satisfied of the guilt of the accused beyond reasonable doubt and the aforesaid direction of the High Court Judge satisfies this requirement fully. Thus, there being no ideal stereotyped direction in evaluating circumstantial evidence, I hold that in the circumstances of the case, the said direction is quite adequate. In any event, I am of the view that the said omission has not caused any substantial prejudice to the Appellant.

[51] The Learned High Court Judge had then drawn the attention of assessors to the evidence of all the witnesses and in particular referred to the Complainant’s evidence that she was taking to her boyfriend about 12.30 a.m. taking about 05 minutes to get to the main road before being pulled away by an stranger who raped her and engaged in that act of sexual intercourse for 5-10 minutes ejaculating inside her vagina. The Learned High Court Judge had also referred to Sergeant Suliano’s evidence that they arrived at the scene about 1.40 a.m. However, he had not referred to the different times spoken by other witnesses in the manner I have narrated in detail earlier and asked them to consider whether or not what the witnesses were referring to were approximate times. The Appellant’s contention that given the time gap between the act of rape and the arrival of police the culprit may have escaped is not sustainable when one looks at the times spoken to by all witnesses carefully. The Learned Judge’ failure to refer to all such evidence in the summing up has in fact prejudiced the prosecution and the inadequacy in that respect has favoured the Appellant. I am convinced that had the Learned High Court Judge directed the assessors of the times relating to the incident described by all the witnesses they would have been even more convinced that those witnesses have spoken to approximate times and the culprit could very well have been at the scene when the police arrived and tried to escape as a last resort only when he felt that he was anyway going to be caught.

[52] Therefore, I reject the first ground of appeal.

Ground (ii)

‘Caution interview improprieties not left adequately to the assessors’

[53] There are two aspects to this ground. One is based on the voluntariness of the caution interview and the other is based on the language in which it was conducted. I shall consider the summing-up in respect of these aspects after considering the law in this regard.

[54] I shall deal with the issue of voluntariness first. The Supreme Court in Khan v State Petition for Special Leave to Appeal No.CAV009/2013 decided on 17 April 2014; [2014] FJSC 6 approved the following direction as ‘sound and proper’ where the appellant had challenged the caution interview on the basis that he had been assaulted by the police, thus effectively repudiating its voluntariness.

“What weight you put on these confessions is a matter for you. If you accept that he gave these statements to the police, that he did so without pressure and that he was telling the police about events as he saw them then you may think that they present a complete picture of how the Accused (deceased) died on the 4th of July.

"Which version of the facts you accept is a matter for you. However if you accept the contents of the statements as being reliable, then you should consider the contents with all the other evidence, the forensic evidence of the scene, the photographs, the evidence of where the taxi was seen all of the 4th of July in deciding what evidence is acceptable to you."(emphasis mine)

[55] Burns v The Queen[1][1975] 132 CLR 258 a Five Judge Bench of the High Court of Australia held
“It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative value are matters for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part....... However, a confessional statement may be only one piece of the evidence against the accused and the jury are entitled to consider all the relevant evidence together in deciding upon their verdict. The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case.......In some cases it may be clear or undisputed that a confession was made and the crucial question may be whether it has any probative value: for example, it may be suggested that the confession had no weight because it was extracted by force or given under a mistake or because the accused when making it was ill in body or disturbed in mind. In a case such as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue.”
[56] Again, the Supreme Court in Kean v State Criminal Appeal No. CAV0015/2010 decided on 12 August 2011; [2011] FJSC 11 held

“In his summing up, the learned trial judge quite correctly left the truth of the confession to the assessors after determining admissibility. The truth and weight of the confession was a matter for the assessors to consider after taking into account all the evidence.”(emphasis mine)

[57] In Basto v R^[2] [1954] HCA 78; [1954] 91 CLR 628 at 640 and 641 Dixson CJ explained

“Once the evidence is admitted the only question for the jury to consider with reference to the evidence so admitted is its probative value or effect. For that purpose it must sometimes be necessary to go over before the jury the same testimony and material as the judge has heard or considered on a voir dire for the purpose ofding the the admissibility of the accused’s confessional statements as voluntarily made............ A confessional sent m voluntary and yet to act upon it might be quite unsafe; it may have no probativeative valu value. Or such a statement may be involuntary and yet carry with it the greatest assurance of its reliability or truth. That a statement may not be voluntary and yet according to circumstances may be safely acted upon as representing the truth is apparent if the case is considered of a promise of advantage being held out by a person in authority. A statement induced by such a promise is involuntary within the doctrine of the common law but it is plain enough that the inducement is not of such a kind as often will be really likely to result in a prisoner’s making an untrue confessional statement.”

“The admissibility of evidence is not for the jury to decide, be it dependent on fact or law and voluntariness is only a test of admissibility.”

[58] In Chan Wei Keung v The Queen^[3] [1966] UKPC 25; [1967] 2 WLR 552 the Privy Council held that the voluntariness of a confession is a test of admissibility and that it is a matter for the judge to decide on the voir dire, but failing in the matter of the voir dire, the defence was entitled to canvass again the question of voluntariness and to call again the evidence relating to that issue but such evidence goes to the weight that the jury would attach to the confession and it is not correct that they must disregard it completely, if not satisfied with its voluntariness.