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State v Ledua - Voir Dire Ruling [2015] FJHC 598; HAC117.2012 (11 August 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 117 OF 2012

STATE

-v-

SAMUELA LEDUA

Counsel: Mr S. Babitu for the State
Ms J. Lagi for the Accused

Date of Hearing: 10th August 2015
Date of Ruling: 11th August 2015

VOIR DIRE RULING

1. The State seeks to adduce into evidence the cautioned interview statement of the Accused made at the Lautoka Police Station on 14th and 15th of September 2012.

2. The test of admissibility of all confessional statement made to the Police Officer is whether that was made freely and not as a result of threats, assaults or inducements made to the Accused by person or persons in authority. Further, oppression or unfairness also leads to the exclusion of the confession. Finally, where the rights of the suspects under the Constitution have been breached, this will lead to the exclusion of the confessions obtained thereby unless the prosecution can show that the suspect was not thereby prejudiced.

3. Accused objects to the admissibility of his interview on the grounds that:

1. That the interviewing officer asked the questions and wrote some of the answers himself to which the Accused did not answer.
2. That the answers in the caution interview are not a true record of his answers.
3. That when the interviewing officer told him to sign the caution interview he followed and signed the caution interview without having a chance to read the contents. He was not explained as to why he had to sign the documents.

IV. That he was forced to sign.

4. It is clear, grounds one and two do not give rise to a trial within trial requiring me to decide on admissibility. Those are mattes to be put to the Assessors at the trial proper.

5. What I am required at this stage is to decide whether the interview was conducted fairly and whether the Accused gave the statement voluntarily. If I find that the signature of the Accused was obtained by the Police forcibly, then I can in my discretion exclude the interview.

6. The burden of proving voluntariness, fairness, lack of oppression, compliance with common law rights, where applicable, and if there is noncompliance, lack of prejudice to the Accused rests at all times with the prosecution. They must prove these matters beyond reasonable doubt. In this ruling I have reminded myself of that.

Now I look at the evidence presented in respect of the cautioned interview.

Case for the Prosecution

7. Mr. Selva Rajan Naicker was first called by the Prosecution. He is a Justice of Peace. On a request by the Crime Officer of the Lautoka Police Station, he went to the Crimes Branch of the Lautoka Police Station on 16th September 2012 and was asked to talk to the Accused with regard to the interview. He introduced himself to the Accused and asked a few questions regarding the interview. In reply, the Accused had told him that the answers to questions put to him at the interview were given on his own free will; no one forced him to sign; Policemen looked after him well; he was not threatened. He appeared normal when he met him. Accused made no complaint regarding the interview or against Police Officers.

8. Inspector Tuitai of Lautoka Police Station gave evidence next. On the instructions, he conducted the interview of the Accused on 14th and 15th of September 2015 at the Crime Branch of the Lautoka Police Station. Before or during the interview, Accused did not complain of anything. He answered all the questions voluntarily. Accused was not forced or threatened to sign the interview. Interview statement was tendered marked as P1.

Under cross examination Inspector Tuitai denied having forced the Accused to sign the interview statement.

9. Witnessing Officer Sakiusa confirmed that he played the role of Witnessing Officer at the interview. He denied taking the signature of the Accused forcibly. Under cross examination, he conceded that he had omitted to place his signature at some places where the Accused and the Interviewing Officer had signed.

Case for the Defence

10. Accused said that there was only Inspector Tuitai present during the interview. He was in a shock and not in a right state of mind during the interview. He said that he signed the document because Inspector Tuitai had told him to sign. He signed when he was shown marked places to sign. He said that he did not sign on his own free will, he signed because he was forced to sign. He came to know it is not the true record of his interview when he was given a copy at Court.

11. Under cross examination, the Accused said that he answered the questions put to him by Tuitai. He was not sure which of the answers not given by him. His state of mind was not good at the time of the interview. He was threatened only when the Police Officers came to arrest him. He reported it to the Justice of Peace when he visited him. Accused did not explain as to how he was forced to sign. After the interview only, he was told to sign but he did not read. He just told me signed here. He showed me the places to sign.

Analysis

12. I find that the evidence of the Police Officers to be plausible, and consistent. Any omissions as to signature of the Witnessing Officer in some places are minor and of no importance to the allegations of impropriety.

13. While the Accused does not have to prove anything, the burden of proof being on the prosecution throughout, I find that the evidence of Accused is inconsistent and implausible. Prosecution evidence was not successfully challenged by the Accused either in cross examination or in his own testimony. Justice of Peace's evidence bolstered the version of the Prosecution.

14. Even the Accused conceded that he answered the questions and placed his signature during as well as at the conclusion of the interview. He had not complained of anything to anybody even to the Justice of Peace who visited him at the Police Station soon after the interview. Even though the Accused said in his evidence-in-chief that he complained to the Justice of Peace, Justice of Peace's evidence was quite contrary to his position. When Justice of Peace was giving evidence Accused's position was never put to him in cross examination.

15. The Accused merely said that he signed because the Interviewing Officer forced him to sign. However, he failed to explain as to how he was forced. When he was repeatedly asked on that point, he said he was shown the places where to sign and he did sign accordingly.

16. The Accused said that he felt intimidated when his house was surrounded by Police and of Police badgering at the time of the arrest. However, he had not complained about it to the Justice of Peace when he visited him. There is no evidence to show that Inspector Tuitai and Sakiusa were among the Police Officers who had surrounded the Accused's house.

17. There is no evidence to suggest that the answers were fabricated. Upon perusal of P.1, it is obvious that the Accused had even denied some of the assertions put to him based on his niece Varanisese's statement. Accused failed to highlight some of the answers allegedly fabricated by the Police Officers.

18. I do not believe the Accused's evidence that his signature was taken forcibly. It was not an allegation made or recorded anywhere else before trial. I am satisfied that the Interviewing Officer had properly cautioned the Accused when and where necessary and had explained and made the Accused aware of the content before signing.

19. I find beyond reasonable doubt that the accused's interview has been obtained voluntarily and fairly. I hold cautioned interview statement to be admissible in evidence.

Aruna Aluthge
JUDGE

At Lautoka
11th August 2015

Solicitors: Office of the Director of Public Prosecution for the State
Office of the Legal Aid Commission for the Accused