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State v Talemaibau [2012] FJHC 1270; HAC130.2010 (9 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 130/2010

BETWEEN:

THE STATE

AND:

1. SAIRUSI TALEMAIBAU
2. TEVITA BOSE

COUNSEL: Mr Fotofili for the State
Accused in Person

Date of Hearing: 07-08/08/2012
Date of Ruling: 09/08/2012

VOIR DIRE RULING

01. The accused Sairusi Talemaibau and Tevita Bose are jointly charged for one count of Aggravated Robbery by Director of Public Prosecution. The State intends to rely on the Records of Interview of the accused.

02. The 1st accused objects to the admissibility of a caution interview made on 05/07/2010 at Valelevu Police Station, on the basis that it was not voluntarily made but induced by threats and promise. The oral grounds on which he initially challenged the admissibility are:

1. That his admission and/or confession was obtained by force through continuous threats and promise of assistance before and during the interview at Valelevu Police Station Sergeant Lemeki and Sergeant Niumaia.

2. That his admission and /or confession was obtained by force through oppression at the Police Station by police officer for a period of four (4) hours.

3. That there was a breach of his rights under the Judges Rules and Article 9(2),10(1) and 14(3)g of the International Covenant on Civil and Political Rights during his interview by the police.

03. The 2nd accused objects to the admissibility of a caution interview made on 03/11/2010 at Valelevu Police Station, on the basis that it was not voluntarily made but induced by threats and assault. The oral grounds on which he initially challenged the admissibility are:

1. That he was assaulted by police officers.

2. That he was induced and threatened by police officers.

3. That he was intimidated and physically abused by the police officers.

04. The test for the admissibility of statements made by an accused to person in authority is whether they were voluntary, obtained without oppression or unfairness or in breach of any Constitutional Rights now Common Law rights. The burden proving voluntariness, fairness, lack of oppression and observance of common law rights rests on the prosecution and all matters must be proved beyond reasonable doubt.

05. Evidence of threats of violence, if accepted by the court, is sufficient to raise a reasonable doubt as to voluntariness. If what the accused says is true, it would create an oppressive climate of fear.

The Law

06. The principles governing the admissibility of an admission or a confession are well settled. A confession or an admission made by an accused to a person in authority could not be properly given in evidence unless it was shown that it was made voluntarily, that is, not obtained through violence, fear or prejudice, oppression, threats and promises or other inducements (Ibrahim v R [1914] AC 59). Even if such voluntariness is established, the trial court has discretion to exclude a confession or an admission on the ground of unfairness (R v Sang [1979] UKHL 3; [1980] AC 402). A further ground that an admission or a confession could be excluded is for breaches of constitutional rights.

07. Oppression is anything that undermines or weakens the exercise of free will (R v Prestly [1965] 51 Cr. App. R). The onus of proving voluntariness, fairness and lack of oppression is on the prosecution and they must prove these matters beyond a reasonable doubt. If there has been a breach of any of the accused's constitutional rights, the prosecution must prove beyond a reasonable doubt that the accused was not thereby prejudiced.

The Prosecution Case

08. At the Voir dire inquiry Prosecution called four (04) witnesses in the following order.

1. DC 3454 Niumaia of Nasinu Police Station gave evidence first. He was the investigating and interviewing officer of both accused in this case. He had interviewed 1st accused on 5th of July, 2010 and the second on 3rd of November, 2010. He had recorded the caution interview statement of 1st accused at Valelevu Police Station. Only he and accused were present at the Crime Branch. Interview was recorded in English Language. Recording started at 6.10pm. During the interview 1st accused was appeared to be normal and he answered all the question put to him. He identified his signature on the caution interview statement. According to him at the relevant time Nasinu Police Station and Valelevu Police Station were merged. The caution interview statement of 1st accused was marked as Exhibit-01. He identified the 1st accused in open court.

On 3rd of October, 2010 he had recorded the caution interview statement of the 2nd accused at Valelevu Police Station. At that time Nasinu and Valelevu Police Stations were separated. He had recorded the interview in English Language but fail to mention the reason. Interview was recorded at Crime Office Valelevu Police Station. At the time of recording DC Lemeki Nawalu was present in the Crime Office. His name is mentioned in the caution interview statement. Both accused and the witness had signed the caution interview statement. Before recording he had explained the rights of the accused. The interview had conducted in question and answer form. Questions were put in Fijian Language and recorded in English Language. 2nd accused appeared to be normal and he answered all the question put to him. He identified the 2nd accused in open court.

In the cross examination by 1st accused witness admitted that he recorded the 1st complaint and visited the scene of crime. Also admitted that he arrested 1st accused but forgot to make a statement. He had arrested the accused as he was in a vehicle which had been reported missing. Also a bag found in the vehicle boot which had been stolen from Caubati. As the bag found inside the vehicle he was interviewed under caution in this case. But he was arrested for unlawful use of a vehicle. He denied that he assaulted or gave false promises to the accused. He denied that he recorded the interview in presence of other police officers.

In the cross examination by 2nd accused witness told court that another officer was present with another accused in the same room. He admitted that the police officer whose name is appearing in 2nd accused's caution interview statement not counter signed. Witness denied that he assaulted the accused during the interview.

In the re-examination witness admitted that he arrested 1st accused in this case.

Answering to the question put forward by the court witness admitted that his signatures appearing in both caution interview statement differs to each other and not the same.

2. Josevata Vikila was called next to testify. According to him he has completed 08 years in Fiji Police and presently attached to Valelevu Police Station. In the year 2010 he was attached at the Valelevu Police Station which was merged with Nasinu Police Station. He has arrested 2nd accused on 28/10/2010 at Nawanawa Road, Nadera. He had waited with a police team. One of the occupants of the vehicle had escaped from them. At the time of arrest 2nd accused had resisted arrest with a small knife. He identified the accused in open court.

He was not cross examined by 1st accused.

In the cross examination by 2nd accused Witness admitted that he was not in uniform at the time he arrested 2nd accused. He denied that he assaulted the accused.

Witness was not re-examined by the Prosecution.

3. D/Sgt Lemeki Nawalu was attached to Valelevu Police Station in the year 2010. He had charged 2nd accused on 3rd day of October, 2010 at Valelevu Police Station. He had taken the charge in English Language. After the charge both had signed the charge statement. Accused appeared to be normal at the time of the charge. Charge statement was marked as Exhibit-03. He identified the accused in open court.

In the cross examination by 2nd accused witness said that he was not taken to hospital before the charge. Witness denied that he assaulted the accused before the charge.

He was not subjected for re-examination.

4. Finally state called DC 3712 Navneet Chandra to give evidence. He corroborated what Josevata Vikila testified before this Court. He identified the accused in open court.

He was cross examined only by the 2nd accused.

After closing the prosecution case defence was called and both accused opted to remain silence.

09. In this case witness number 01 had recorded the caution interview statements of both accused. He had followed two methods to record the interviews. In respect of 1st accused he had not called a witnessing officer. Only he and 1st accused signed the caution interview Statement. In respect of 2nd accused he had called a witnessing officer but he had not counter signed the caution interview statement. In the cross examination witness said that witnessing officer was present along with another accused in the same room where 2nd accused's caution interview statement was recorded.

10. A serious doubt had been raised regarding voluntariness of recording of caution interview statements. Witness number 01 had recorded both Caution Interview Statements marked and produced them as Exhibit-01 and 02. On perusal of both caution interview statements witness number one had placed his signature totally different each other. When court questioned about this discrepancy witness admitted that both signatures are totally different to each other.

11. Accordingly, I conclude that the police had not followed proper procedure to record the caution interviews of both accused. The recording officer had placed two different signatures in the caution interview statements. This creates a serious doubt as to the genuinity of recording the caution interview statements.

12. I, therefore, rule out the admissibility of the alleged caution interview statements of both accused marked as Exhibit- 01 and Exhibit- 02 on the ground of their involuntariness. Their admission in evidence will affect the fairness of the proceedings. Accordingly, I reject the caution interview statements of both accused as being irrelevant.

P. Kumararatnam
JUDGE

At Suva
09/08/2012