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State v Ravia - Voir Dire Ruling [2020] FJHC 1106; HAC 430 of 2018S (31 December 2020)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 430 OF 2018S

STATE
Vs

SETAREKI RAVIA

Counsels : Mr. M. Vosawale and Mr. U. Lal for State

Ms. M. Chand for Accused
Hearings : 12 and 13 October, 2020.
Ruling : 13 October, 2020.
Written Reasons : 31 December, 2020.
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WRITTEN REASONS FOR VOIR DIRE RULING

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1. In this case, the accused was charged with another, in the following information:
   

“Count 1

Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311 (1) (a) of the Crimes Act 2009.

Particulars of Offence

SETAREKI RAVIA & JEKEMAIA RABONU on the 10^th day of November 2018, at Nasinu in the Central Division, in the company of each other, robbed SAT DEO MAHARAJ of a wallet containing $340.00 cash and assorted cards, the property of the said SAT DEO MAHARAJ.

Count 2

Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311 (1) (a) of the Crimes Act 2009.

Particulars of Offence

SETAREKI RAVIA & JEKEMAIA RABONU on the 10^th day of November 2018, at Nasinu in the Central Division, in the company of each other, robbed PARBHA WATI of handbag which contained: $204.00 (cash), 1 x Alcatel mobile phone, 1 x Gold plated bangle, 1 x Silver and purple coloured bangle and 1 x Gold chain, the property of the said PARBHA WATI.”

2. Mr. Jekemaia Rabonu pleaded guilty to the offences and was convicted of the same on 19 July 2019. He was sentenced to 8 years imprisonment, with a non-parole period of 6 years, on 5 December 2019. So, the voir dire on 12 and 13 October 2010 only concerned Mr. Setareki Ravia (the accused).
   
3. On 24 June 2019, the accused denied the allegations against him on count no. 1 and 2. He pleaded not guilty to the two counts. The prosecution alleged that during their investigation, the accused allegedly confessed to the two counts, when caution interviewed by police on 11 November 2018, at Valelevu Police Station. On 12 and 13 October 2020, the accused challenged the admissibility of the above confession in a voir dire hearing.
   
4. The prosecution called four witnesses, all police officers. The accused (DW1) gave evidence and called Doctor Tracy Shackley (DW2) as his witness. Altogether, there were six witnesses, on whose evidence, the court will have to make a decision. I heard the witnesses on 12 and 13 October 2020. After listening to the evidence, and after carefully considering their closing verbal submissions, I ruled that the accused’s alleged confession as admissible evidence and it may be used as evidence in the trial proper. I said, the acceptance or otherwise of the evidence, is a matter for the assessors. I said I would give my written reasons later on notice. Below are my reasons.
   
5. 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....”
   
6. The voluntariness of the alleged confession, and the fairness in police conduct while the accused was in police custody was contested in this case, All the police officers appeared to be saying that the accused was given his rights, his right to counsel, was given the breaks and meals, while in police custody. The police witnesses said they did not assault or threatened him to confess while he was, in their custody. They said, they treated him well and he gave his caution interview statements voluntarily and out of his own free will.
   
7. The accused, on the other hand, said exactly the opposite. He said, the police assaulted him when he was arrested on 10 November 2018. He said, they assaulted him in the police vehicle when they transported him to Valelevu Police Station. He said, he was again assaulted at Valelevu Police Station. He said, he was later taken to Raiwaqa Police Station and was also assaulted there. On 11 November 2018, he said, he was caution interviewed at Valelevu Police Station. He said, he was also assaulted there. He said, he was taken to a doctor at 11 am on 11 November 2018 to be medically examined. He said, he did not give his caution interview statement voluntarily and the police conduct on him was unfair.
   
8. Doctor Tracy Shackley (DW2) was called by the accused. She was the doctor who medically examined him on 11 November 2018. DW2 submitted the accused’s medical report as Defence Exhibit No. 1. In D (12) of the report, DW2 said, the accused was unable to completely open his jaw, but was able to bite on his back teeth. She said, there was tenderness on the back of the scalp and there was abrasion to the right knee. The doctor, however when cross examined said, she did not find any severe injuries, to support the accused’s alleged severe assaults by police.
   
9. Having considered both parties’ version of events, and having critically examined the whole evidence, I accepted the prosecution’s version of events, and ruled the accused’s caution interview statements, as admissible evidence. If I had accepted the accused’s version of events of severe beatings and assaults by police, he should have been dead.
   
10. The above are the reasons for my ruling on 13 October 2020.
    

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva.