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State v K.N.P - Written Reasons for Ruling on Trial Within a Trial [2013] FJHC 113; HAC079.2012S (14 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 079 OF 2012S

STATE

vs

K. N. P

Counsels : Ms. M. Fong for State
Accused in Person
Hearing : 12th March, 2013
Ruling : 12th March, 2013
Written Reasons: 14th March, 2013

WRITTEN REASONS FOR RULING "ON TRIAL WITHIN A TRIAL"

1. On 12th March, 2013, I heard 2 prosecution's witnesses, in a "trial within a trial". At the end of the prosecution's case, the accused choose to remain silent, and called no witness. I heard closing submission from the prosecution. The accused again exercised his rights to remain silent. He was challenging the admissibility of his caution interview statements, which he made on 2nd and 3rd March, 2012, including his charge statement, which he made on 3rd March, 2012.
   
2. At the end of the closing submission, I ruled the accused's caution interview statements, and his charge statements, as admissible evidence. I said, I would give my reasons later. Below are my reasons.
   

3. The law in this area is well settled. On 13th July 1984, the Fiji Court of Appeal in Ganga Ram & Shiu Charan v Reginam, Criminal Appeal No. 46 of 1983, said the following, "....it will be remembered that there are two matters each of which requires consideration in this area. First, it must be established affirmatively by the crown beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as the use of force, threats of prejudice or inducement by offer of some advantage – what has been picturesquely described as the "flattery of hope or the tyranny of fear" Ibrahim v R (1941) AC 599. DPP v Ping Lin (1976) AC 574. Secondly even if such voluntariness is established there is also need to consider whether the more general ground of unfairness exists in the way in which the police behaved, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. Regina v Sang [1979] UKHL 3; (1980) AC 402, 436 @ C – E. This is a matter of overriding discretion and one cannot specifically categorize the matters which might be taken into account ...."

4. In this case, the prosecution's witnesses said, they did not assault, threaten or made promises to the accused before, during and after taking his caution interview and charge statements. The accused choose to remain silent and called no witness. I found the prosecution's witnesses' evidence credible.

5. Bearing in mind the authorities mentioned in paragraph 3 hereof, I ruled the caution interview and charge statements as admissible evidence. It's acceptance or otherwise, at the trial proper, will be a matter for the assessors.

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecutions, Suva
Solicitor for Accused : In Person