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State v Volotui - Voir Dire Ruling [2015] FJHC 425; HAC192.2011 (5 June 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 192 OF 2011

STATE

-v-

SAKIUSA VOLOTUI

Counsel: Mr. A. Singh for the State
Accused in Person

Dates of Hearing: 04th June, 2015
Date of Ruling: 05th June, 2015

VOIR DIRE RULING

(1) The State seeks to adduce into evidence the cautioned interview statement purportedly made by the accused to Nadi Police on 21.08.2011.

(2) The accused, appearing in person without a counsel, tendered a letter to the Court indicating that the interview statement was given voluntarily. However, the accused raised some issues with regard to the manner in which his arrest was made by the Police.

(3) In view of the reservations the accused had in respect of the arrest, the Court decided to conduct this inquiry to fully satisfy itself about the admissibility of the cautioned interview statement of the accused.

(4) It is for me to decide therefore whether the interview was conducted freely and not as a result of threats, assaults or inducements made to the suspect by a person or persons in authority (in this case the Police). Secondly, if I find that there has been oppression or unfairness, then I can in my discretion exclude the statements in the interview and the charge sheet. Finally, if any accused's rights guaranteed under the Constitution have been breached, then that will lead to exclusion of the confession obtained thereby, unless the Prosecution can show that the suspect was not thereby prejudiced. These rights include the right (i) to have a legal representative of his choice and (ii) to have access to family or next of kin.

(5) The Fiji Court of Appeal in Ganga Ram and Shiu Charan v R 1983 (unreported) outlined the two-part test for the exclusion of confessions at p.8:

"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 (sic) 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 – which has been picturesquely described as" the flattery of hope or the tyranny of fear" Ibrahim v R (1914) A.C. 599; DPP v Ping Lin (1976) A.C. 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 police behaved, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. (R v Sanag [1979] UKHL 3; (1980) A.C. 402, 436CE). This is a matter of overriding discretion and one cannot specifically categorize the matters which might be taken into account."

(6) In relation to voluntariness, breaches of the Judges Rules are relevant but do not determine what is voluntary. The real question under principle (e) under the preamble to the Judges Rules is whether the statement is voluntary "in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority or by oppression". Oppression is something which "tends to sap and has sapped that freewill which must exist before the confession is voluntary".

(7) The burden of proving voluntariness, fairness, lack of oppression and of Constitutional rights in effect at the relevant times where applicable, and lack of prejudice (if there is) to the suspect, rests at all times with the prosecution. They must prove these matters beyond reasonable doubt. In this ruling I have reminded myself of that.

I summarize evidence led in the inquiry to satisfy myself that every important piece of evidence has been properly taken into account in coming to my conclusion.

The Prosecution Case

(8) The State called three Police witnesses, arresting officer, interviewing officer and witnessing officer.

(9) SC. Samo of Nadi Police Station first gave evidence. When he was on duty at the charge room of the Nadi Police Station, he went with another police officer to Nakavu village to arrest Sakiusa on 21.08.2011. He managed to locate the house of the suspect. When knocked on the back door of the house, the suspect came out and identified himself as Sakiusa Volotui.

(10) When the witness was asked whether the suspect was informed of the reason for arrest, he did not give a clear answer. He said that he only informed the suspect about the report he had against him. The nature of the report was not divulged to the accused before the arrest. The accused was not assaulted, threatened or induced during the arrest. There was no complaint either at the time of arrest or during conveyance to the police.

(11) Virisila Rakadi of Nadi Police Station conducted the interview of the accused on 21.08.2011. She said that the interview commenced at 1530 hrs. PC Jolame participated as the witnessing officer. The accused was given all the rights including the right to counsel and properly cautioned before the interview. Sufficient breaks were given. There was no assault, threat or inducement before, during or after the interview. The accused did not complain of anything before, during or after the interview. She tendered in evidence the hand written cautioned interview statement signed by the accused, marked PE.1 and the typed version which she prepared as PE.2. The accused was produced before the Magistrate the same day as the interview was. She did not recall the time at which the interview was concluded. In cross examination, the witness said that the nature of the interview and the allegation against the accused was properly explained to the accused before the interview.

(12) Prosecution called the witnessing officer Jolame as the last witness. He said he was present at the interview right throughout. He counter-signed the cautioned interview statement after the accused and the interviewing officer had signed it. There was no assault, threat or inducement before or during the interview.

Case for the defence

(13) Accused testified on oath and said that he was not informed of the reason for arrest. He was arrested at home in Nakavu village around 11 a.m. and was taken to the police station where he was kept waiting there for nearly twenty hours before the interview. He also said that he was detained in the police custody for nearly a week.

(14) In cross examination, the accused admitted that the interviewing officer explained the allegation against him and the nature of the interview. He also admitted that even though he did not read the content of the statement properly he knew what was there in it before signing. He also admitted that the statement was given voluntarily and the court was informed in advance that he did not wish to challenge the interview statement.

Analysis

(15) The evidence of the police witnesses is reliable and believable. Even though the reason for arrest was not explained to the accused at the time of the arrest, the interviewing officer had told the accused the nature of the interview and the allegation against him prior to the interview. Therefore, no prejudice has been caused to the accused as he was quite aware of the allegation against him by the time of the interview.

(16) Although the accused said, in his evidence in chief, that he was detained for nearly twenty hours before the interview, he admitted in cross examination, that he was arrested around 11 a.m. and the interview was started around 4 p.m. on the same day. The accused did not put his version of long detention to the prosecution witnesses when he cross examined them. He admitted that he was brought before the magistrate after the interview and did not tell the magistrate that he was being detained in custody for five days.

(17) I find that the police evidence was truthful and capable of being relied on by the Court. Evidence of the accused in respect of long detention in police custody before and after the interview was self-contradictory and unbelievable.

Conclusion

(18) Therefore, I find that the cautioned interview statement of the accused to have been made voluntarily. There is nothing oppressive or in breach of constitutional duty which would lead me to exclude the cautioned interview statement. I hold that the cautioned interview statement can be lead in evidence at trial.

Aruna Aluthge
JUDGE

At Lautoka
05th June 2015

Solicitors: Office of the Director of Public Prosecution for the State
Accused in Person