IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 153 OF 2013

BETWEEN:

STATE

AND:

1. NACANI TIMO
2. FILIPE WAQATA

Counsel : Ms. S. Kiran for Prosecution
1st Accused in person
2nd Accused in absence

Date of Hearing : 19th, 21st, and 22nd of May 2015
Date of Ruling : 24th of May 2015

RULING ON VOIR DIRE

1.	The first and the second accused persons informed the court that they wish to challenge the admissibility of their respective caution interviews as evidence at the trial. Both of them tendered their grounds for voir dire in writing. 

2.	The first accused person’s grounds for voir dire are; 

i.	That his confession was obtained involuntarily through pressure, duress and force by the police upon his arrest and at the Lautoka Police Station, 

ii.	That on the 22nd of July 2013 he was arrested from Suva by the strike back team and taken to Nabua Police Station, 

iii.	That at Nabua Police Station he was hand cuffed, assaulted and questioned by the officers at the Nabua Police Station, 

iv.	That he was then escorted to Lautoka Police Station the same evening and was also punched by the two police officers who sat next to him in the vehicle, 

v.	That while the caution interview was being conducted on the 23rd of July 2013, he was threatened and assaulted to sign the caution interview by the interviewing officers that were present, 

vi.	That his rights were never read out nor explained to him and he never had a chance to read the contents of his caution interview, 

vii.	That he was taken for medical attention after 2 days of the assault, 

3.	The voir dire grounds of the second accused person are that;

i.	The interview statement was fabricated, 
ii.	Was assaulted, intimidated, and threatened before, during and after the caution interview, 
iii.	Substantially subjected to oppression while in police detention, 
iv.	Right to consult a lawyer or a family member was not given during the caution interview, 

4.	The voir dire hearing was conducted on 19th, 21st and 22nd of May 2015. The second accused failed to appear in court, wherefore; the hearing was preceded in his absence. The prosecution called nine witnesses during the course of the hearing. The first accused gave evidence on oath and called four witnesses for the defence. At the conclusion of the hearing the learned counsel for the prosecution made her oral closing submissions. The first accused was given time to file his closing submissions, which he filed as per the direction. 

5.	Having carefully considered the grounds for voir dire, the evidence presented and the respective written submissions of the parties, I now proceed to pronounce my ruling as follows. 

6.	I first draw my attention to discuss the applicable law on the admissibility of caution interview. 

7.	The Privy Council in  WONG KAM-MING v THE QUEEN (1982) A.C. 247 at 261 has discussed the basic control over admissibility of statement, where it was held that "The basic control over admissibility of statement are found in the evidential rule that an admission must be voluntary i.e. not obtained through violence, fear or prejudice, oppression, threats and promises or other improper inducements. See decision of LORD SUMNER in IBRAHIM v. R (1914-15) AER 874 at 877. It is to the evidence that the court must turn for an answer to the voluntariness of the confessions."

8.	The Fiji Court of Appeal in Shiu Charan v R (F.C.A. Crim. App. 46/83) has discussed the applicable test to determine the admissibility of caution interview of the accused person at the trial, where it was held that "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 or 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 (1914) AC 599. DPP v Pin 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 (1980) AC 402, 436 @ c - E." (State v Rokotuiwai - [1996] FJHC 159; Hac0009r.95s (21 November 1996).

9.	It appears that the test enunciated in Shiu Charan (supra) constitutes two components. The first is the test of voluntariness. The court is required to satisfy that the statement in the caution interview has been taken without any form of force, threats, intimidation, or inducement by offer of any advantage. The second component is that, even though the court is satisfied that the statement was given voluntarily without any form of threat, force, intimidation or inducement, it is still required to satisfy further that there were no any general grounds of unfairness existed before or during the recording of the caution interview.

10.	Sometimes the authoritative approach of the police officers and the environment in the police station might create an unequal relationship between the police and the suspects who are brought into the police for investigations. Bearing in mind of such asymmetrical relationship between the police and the suspects, section 13 (1) (d) of the constitution of the Republic of Fiji has stated that no arrested or detained person should be compelled to make any confession or admission that could be used in evidence against that person. 

11.	Furthermore, section 13 (1) (f) of the Constitution of the Republic of Fiji has identified that all detained and arrested persons have a right to be treated with human dignity, where it states that;

"to condition of detention that are consistent with human dignity, including at least the opportunity to exercise regularly, and the provision, at state expense, of adequate accommodation, nutrition and medical treatment". 

12.	It appears that the rights given to the arrested and detained person under section 13 (1) have given a constitutional acknowledgment to the test enunciated in Shiu Charan (supra). 

13.	Justice Nawana in State v Malelei ( Crimina Case No HAC 147/ 2007) expressing his view on the admission of caution interview has observed that; "A confession, as observed at the out-set of this ruling, is an objectionable item of evidence in view of its inherent infirmities. Its admission in evidence should, therefore, be scrupulously examined by court and apply the widest possible test that favours an accused person."

14.	However, it is the responsibility of the court to apply and employ this protective regime while protecting and preserving the rights of the Police to question anyone in the course of proper investigation and in the public interest. ( Shameem J in State v Vasuitoga&Quari, FHC Cr Case No HAC 08 of 2006). 

15.	It is the burden on the prosecution to prove beyond reasonable doubt that the statement made in the caution interview was made voluntarily and without the existence of any form of general unfairness (State v Rokotuiwai - [1996] FJHC 159; Hac0009r.95s (21 November 1996). This burden on the prosecution remains throughout the hearing.

16.	Having discussed the laws pertaining to the admissibility of caution interview and the standard of proof, I now draw my attention to this instant case. 

17.	It appears that all the witnesses who gave evidence in respect of the first accused person, affirmatively and in convergence stated that he was treated fairly, and was not assaulted, threatened, intimidated or oppressed before and during the recording of his caution interview. All of them have noticed a cut on his forehead. Prosecution stated that this cut was on his forehead at the time of his arrest. The accused has sustained that injury on his forehead at a fight he had with his friends at a night club in Suva. 

18.	On the other hand, the first accused stated in his evidence that he was subjected to brutal assault and torture during his detention. He alleged that he was assaulted at his arrest and was continuously tortured until he was produced before a magistrate. 

19.	I am mindful of the fact that the accused is not required to prove anything of these allegations. It is the onus of the prosecution to prove beyond reasonable doubt that the accused gave his interview voluntarily. 

20.	In view of the evidence given by the doctor and the letter of the doctor dated 29th of May 2014, which was tendered and marked as a prosecution exhibit, I find that the accused had bruises on his face and swollen nasal bridge. The X –ray has confirmed that the accused had a fracture un-displaced nasal bone. The doctor in her evidence stated that the swelling on his nose was clearly visible. 

21.	According to the evidence presented during the hearing, it appears that none of the prosecution witnesses, apart from the doctor, had noticed the swollen nose of the first accused. Specially, even the interviewing officer and witnessing officer who spent much of time with the accused during his detention had not noticed this swollen nose of the accused. 

22.	According to the prosecution witnesses, the first accused was arrested only with a cut on his forehead. However, after his detention in the Police, the Doctor has found a swollen nose with fractured bone at the nasal bridge, apart from the said cut on his forehead. There is no evidence to explain the manner and the place the accused sustained such an injury while in the police detention. Accordingly, there is a reasonable doubt whether these injuries were sustained during his detention in the police. 

23.	This reasonable doubt undoubtedly falls within the scope of the tests of voluntariness, general fairness and fair treatment enunciated in Shiu Charan v R (supra). Accordingly, it is my opinion that the first accused person was not fairly treated while he was in police detention and has not voluntarily given his statement in the caution interview and in the charging statement. 

24.	The prosecution proved beyond reasonable doubt that the caution interview and the charging statement of the second accused were recorded fairly and voluntarily. 

25.	I accordingly hold that the caution interview and the charging statement of the first accused person are not admissible as evidence. Furthermore, it is my opinion that the second accused person was not subjected to any form of force, assault or intimidation, or unfair treatment prior to or during the recording of his caution interview and charging statement, I accordingly hold that the caution interview and the charging statement of the second accused person is admissible as evidence. 

R. D. R. ThusharaRajasinghe
Judge

At Lautoka
25th of May 2015

Solicitors : Office of the Director of Public Prosecutions for Respondent
1st accused in person