IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 90 OF 2010

BETWEEN:

STATE

AND:

1. SIRELI LILO
2. JESE MUCUNABITU
3. ILIVASI NAVUNICAGI
4. EPARAMA TAMANIVAKABUTA

Counsel: Mr. S. Babitu for Prosecution 
Ms. Karan for the 1st and 4th Accused in persons
Mr. Kumar with Ms. Hazelman for 2nd Accused
3rd Accused Person in absence

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

RULING ON VOIR DIRE

Introduction

1.	The Prosecution proposes to give in evidence the caution interviews of the four accused persons, for which first, second and the fourth accused persons objected. The third accused person absconded in appearing before the court, wherefore, the voir dire hearing proceeded in his absence. 

2.	The objections of the first accused person for the admissibility of his caution interview in evidence are founded on following grounds, inter alia;

I.	Physically and sexually assaulted during the arrest by the police officers,

II.	Locked up in police cell for three days, 

III.	Not given any medical attention, 

IV.	Assaulted at the Police Station,

3. The objections of the second accused person are founded on the following grounds, inter alia;

I.	Threatened, assaulted and tortured by the Interviewing Officer and the Witnessing Officer during the recording of caution interview on 6th and 8th of September 2010, 

II.	Not given any medical attention,

4. The objections of the fourth accused person are founded on the following grounds, inter alia;

I.	Assaulted by the arresting officers at the time of arrest, 

II.	Assaulted during the recording of the caution interview, 

III.	Not given medical attention, 

5. The voir dire hearing was conducted on the 21st and 22nd of September 2015, where the prosecution called eight witnesses. The first, second and fourth accused persons gave evidence on oath, but did not call any other witnesses for the defence. At the conclusion of the hearing the counsel of the parties informed the court that they all rely on the evidence adduced during the course of the hearing and do not wish to make any submissions. Having carefully considered the evidence adduced during the course of the hearing, I now proceed to pronounce my ruling as follows. 

Background

6. The prosecution adduced evidence to establish that the caution interviews of the four accused person were recorded without assault, threat or force and they have given their answers voluntarily. In the meantime, the first accused in his evidence stated that he was badly assaulted and sexually abused by the arresting officers when they arrested him. He was again assaulted and threatened during the recording of his caution interview. The second accused person in his evidence stated that he was assaulted during the recording of his caution interview. His hands were hand cuffed to his back and was assaulted by the interviewing officer and three other officers. The fourth accused person explained the manner he was assaulted and tortured during the arrest and recording of his caution interview. 

The Law

7. The scope of the hearing of voire dire is extended only to the admissibility of the confessionary statement of the accused in evidence. The probative value of it still remains for the assessors during the trial proper. (G vs UK ( 9370/81, 35 DR 75). 

8. Justice Gounder in State v Akanisi Panapasa (Criminal Case No 34 of 2009) has outlined the general rule on admissibility of confession, where his lordship found that;“As a matter of general rule, a confession made by an accused person to a person in authority out of court is admissible only if the confession was made voluntarily. The rule which was developed by the English common law is the state of law in Fiji”.

9. The principle of rejection of an improperly obtained confession is founded on three main principles, 

I.	Unreliability of the confession,

II.	Rights against self-incrimination,

III.	To prevent undesirable police conduct on the person in their custody,

10. Sections 13 and 14 of the Constitution of the Republic of Fiji Islands have recognised and endorsed the above mentioned three main principles. 

11. Having understood the principle of rejection of improperly obtained confession, I now turn onto the issues of test of voluntariness. 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."

12. The Fiji Court of Appeal in Shiu Charan v R (F.C.A. Crim. App. 46/83) has discussed the applicable test of 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).

13. It appears that the test enunciated in Shiu Charan (supra) constitutes two components. The first is the test of oppression. The court is required to satisfy that the statement in the caution interview had 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 that no any general grounds of unfairness existed before or during the recording of the caution interview. 

Analysis

14. Having discussed the objectives of the voir dire and the applicable test of voluntariness, I now turn onto this instant case. 

15. The main objections of the first and the fourth accused persons are that they were assaulted by the arresting officers during the arrest. The prosecution has not adduced any evidence to prove that the two accused were arrested in a proper manner without any form of assault or intimidation. 

16. Apart from merely stating that the accused made no complain to the police about any form of misconduct, assault, threat or force, the prosecution has not presented any evidence of their movements while in custody. 

17. It has been stated in the caution interviews of first accused person and the second accused persons that there was a witnessing officer present during the course of these respective caution interviews. However, in evidence those two officers, who's names have been stated as witnessing officers in these two respective caution interviews, stated that they actually were not acting as witnessing officers but were merely present during the recording of those respective caution interviews. Their evidence creates a doubt that apart from the interviewing officer, there were some other officers present during the recording of caution interviews. This further creates a doubt whether these officers who were presented at the time of caution interviews, have actually assaulted, threatened or forced the accused persons to confess in their respective caution interviews as alleged by the accused persons. 

18. Moreover, it appears that the caution interview of the second accused person has concluded at 9.20 p.m on the 8th of September 2010. However, the charging statement of the same accused person states that the charging commenced at 9.05 p.m. and concluded at 9.35p.m on the 8th of September 2010. Likewise, the caution interview and the charging statement of the third accused person does not mention the time of commencement or time of conclusion. These contradictions and the inconstancies, undoubtedly creates a doubt about the manner of recording of the caution interviews. 

19. It is the burden of 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.

20. In view of the reasons discussed above, it is my opinion that the prosecution has failed to prove beyond reasonable doubt that caution interviews of the four accused persons were recorded voluntarily and without any form of unfairness. I accordingly hold that the caution interviews of the four accused persons are not admissible in evidence at the hearing.

R. D. R. ThusharaRajasinghe
Judge

At Lautoka
24th of September 2015

Solicitors: Office of the Director of Public Prosecutions for Respondent
 Office of Legal Aid Commission Pasifika Lawyers for the 1st & 4th Accused persons