IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

						Criminal Case. No. HAC 02 of 2021

BETWEEN			:	THE STATE

A N D				:	JOSAIA RACEVUA

Counsel			:	Ms. S. Naibe for the State.
					Ms. S. Ali for the Accused.	

Dates of Hearing		:	02, and 03 March, 2022
Date of Submissions	:	17 March, 2022
Date of Ruling		:	18 March, 2022

VOIR DIRE RULING 

1.	The accused is charged with four counts of rape involving two complainants contrary to section 207 (1) (2) (a) (b) and (3) of the Crimes Act 2009.

2.	The prosecution wishes to adduce in evidence at trial the caution interview of the accused dated 21st December, 2020 and the charge statement dated 22nd December, 2020.

3.	The accused objects to the admissibility of the caution interview and the charge statement upon the following amended grounds of voir dire filed herein:

1.	That the caution interview was obtained without any voluntariness, in other words, he was forced by the Interviewing Officer to admit;

2.	That he was threatened by the Interviewing Officer during the caution interview and informed that if he doesn’t admit to the allegation, he will be assaulted;

3.	That he was also threatened during his charge to admit to the allegation;

4.	That he was under heavy duress and afraid of losing his life, whereby he states that he was assaulted by the Interviewing Officer.  He was punched and kicked during his interview and he feared that if he denied the allegations he would have been further assaulted.

4.	The prosecution denies all the allegations raised by the accused in the voir dire grounds. The burden is on the prosecution to prove beyond reasonable doubt that the caution interview and the charge statement of the accused was conducted fairly under just circumstances, the answers were given voluntarily, lack of prejudice, lack of oppression and in compliance with the Fijian Constitution where applicable.  In this ruling the above principle of law has been kept in mind throughout.

	LAW

5.	The Court of Appeal in Ganga Ram and Shiu Charan vs. R, Criminal 	Appeal No. AAU 46 of 1983 outlined the following two tier test for the 	exclusion of confessions at page 8 in the following words:
“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 which has been picturesquely described as “the flattery of hope or the tranny of fear” Ibrahim v R (1914) AC, 599; DPP v Ping Lin (1976) AC 574.
	
Secondly, even if such voluntariness is established there is also a need 	to consider whether the more general ground of unfairness exists in the 	way in which police behaved, perhaps by breach of the Judge’s Rules 	falling short of overbearing the will, by trickery or by unfair treatment.  R v 	Sang (1980) AC 402; 436 at C-E. This is a matter of overriding 	discretion and one cannot specifically categorise the matters which might 	be taken into account.”

6.	The Constitution of the Republic of Fiji at sections 13 and 14 have 	recognised and endorsed the above mentioned principles as well.

7.	It is for this court to decide firstly, whether the caution interview and the charge statement of the accused was conducted freely and fairly without any threats, assault, inducements or any improper practices by the persons in authority namely the police officers who were involved in the interrogation of the accused and that the accused had voluntarily given his answers on his freewill.

8.	Secondly, if there has been oppression or unfairness then this court can in its discretion exclude the caution interview and the charge statement. Further if the accused common law rights have been breached then that will lead to the exclusion of the confessions obtained, unless the prosecution can show that the accused was not prejudiced as a result of that breach.

PROSECUTION CASE

9.	The prosecution called three witnesses to prove that the caution interview and the charge statement of the accused were conducted freely and fairly without any threats, assault, inducements or any improper practices by the police officers who were involved in the interrogation of the accused and that the accused had voluntarily given his answers on his freewill.

10.	The first witness Det/Sgt. 3033 Nacanieli Draliva informed the court that on 21st December, 2020 he was instructed to caution interview the accused.  The witnessing officer was DC 3619 Joape who was present throughout the caution interview.  The interview was conducted in the Itaukei language with the typing done on the computer.  Later the witness had translated the caution interview in the English language.

11.	After the interview was printed the accused signed followed by the witnessing officer and the witness.  The original record of interview, of the accused (Itaukei language) was marked and tendered as prosecution exhibit no. 1 (a) and the English translation as prosecution exhibit no. 1 (b).

12.	The caution interview was conducted in the crime office of the Rakiraki Police Station.  Before the commencement of the interview, the accused was okay and he did not have any complaints to make.  During the interview, the accused was given his rights as mentioned in questions 11 to 13.  The accused was cautioned which he understood.

13.	The interview commenced at 9:55 am and concluded at 8 pm the same day with a scene reconstruction from 14:50 hours till 19:15 hours. According to the witness the accused was given breaks to drink water and to have his lunch.  The accused was not threatened, assaulted or promised or induced or influenced to make a statement either by the witness or the witnessing officer.  The accused was also not forced or threatened to sign the record of interview.

14.	The witness denied the allegations raised against him by the accused in his voir dire grounds.  He stated that the statement given by the accused was given on his freewill.  The witness stated that during the interview the accused was given an opportunity to visit a doctor but the accused did not wish to. The witness identified the accused in court.

15.	In cross examination, the witness denied that he had forced the accused to admit to the offences or threatened to assault him or had punched or kicked him during the interview.  The witness also denied that the answers noted in the caution interview were not given voluntarily by the accused due to the assault on him.

16.	The next witness PC 3691 Joape Qio informed the court that he was instructed to witness the caution interview of the accused.  Before the interview commenced, the witness did not see any injuries on the accused and the accused did not make any complaints about any assault on him by the police officers.

17.	After the interview had concluded, it was printed, read back to the accused and then signed by all of them.  The accused was cautioned and the witness was present throughout the interview.

18.	The witness did not see the interviewing officer assault or threaten the accused anytime during the interview and also at no time had the witness threatened or promised or assaulted the accused to admit the allegations or forced him to sign the interview.

19.	The witness denied all the allegations raised by the accused in his grounds of voir dire.

20.	In cross examination, the witness was referred to the station diary entry No. 104 of 21st December, when it was suggested that the entry made stated that it was the interviewing officer and the accused who had gone for scene reconstruction and not him.  The witness said that he had also gone with the accused but his movement was not recorded.

21.	The witness agreed that when the team returned from scene reconstruction, his name was once again not mentioned in the station diary that he had returned with the team.  The witness denied he had threatened the accused to admit the allegations or that he had seen the interviewing officer threaten the accused.

22.	In re-examination, the witness explained his name was not mentioned in the station diary because he was already in the vehicle before the accused and the interviewing officer had come to board.

23.	The final witness PC 3354 Amani Waqetia informed the court that on 22nd December, 2020, he was instructed to charge the accused.  Before the charge, the witness did not see any injuries on the accused and there was no complaint made by the accused that he had been assaulted by the police officers.  The accused was charged in the Itaukei language which was typed by the witness on the computer, thereafter, the witness did an English translation.  The accused had signed the charge as well.  The charge statement of the accused in the Itaukei language was marked and tendered as prosecution exhibit no. 2 (a) and the English translation as prosecution exhibit no. 2 (b).

24.	According to the witness, the charge commenced at 10:05 hours and concluded at 10:40 hours at the crime office of Rakiraki Police Station. Before the charge commenced, the accused looked normal and he responded well to the questions asked.  The accused did not inform the witness that he had been assaulted by the interviewing officer or the witnessing officer.  The accused was cautioned and given all his rights which he understood. 

25.	The witness also stated that he did not threaten, assault or promise or induce the accused to admit to the allegations or force the accused to sign the charge.

26.	In cross examination, the witness denied he had threatened the accused to make a statement admitting the allegations.

27.	This was the prosecution case.

DEFENCE CASE

28.	The accused opted to give evidence and informed the court that on 21st December, 2020, he was taken to the Rakiraki Police Station by a group of police officers.  At the Police Station he was made to sit on a chair and was told that he had raped a child.  The accused responded by saying that he did not do any such thing.  There were three police officers who had questioned him.

29.	Upon hearing what he had said, one police officer punched him on his head making him fall from the chair while the other officer pulled the collar of his t-shirt and punched his chest.  This officer told the accused not to lie but to tell the truth.  The accused again told the officers that he did not know anything about the allegations and he told the officers “if you keep assaulting me and I die, it will be nothing to me because I don’t even know anything about the allegation.”

30.	Although the accused did not know the name of these officers, all three officers had given evidence in court.  According to the accused, the charging officer did not do anything to him and he had not told the charging officer that he had been assaulted by police officers the previous day because he was afraid they will assault him again.

31.	The accused had not asked to be taken to the hospital because he was weak and frightened of what the officers had done to him.  During the interview and the charge, one officer was seated a bit far away and two officers were seated on his either side.

32.	In cross examination, the accused confirmed that he was interviewed in the Itaukei language by Sgt. Nacanieli and witnessed by PC Joape.  The accused had also signed the interview and the next day he was charged by Constable Amani in the Itaukei language and that he had signed the charge statement.

33.	The accused agreed he was treated well in police custody but was assaulted on the first day only.  He was produced in the Magistrate’s Court where the Magistrate had asked him questions.  In the Magistrate’s court, he had said that he had given his answers to the police.  The accused agreed he had also denied in the Magistrate’s  Court that the police had beaten and sworn at him and that he had also said “no” when asked by the Magistrate if the police had done anything to scare him and that he had said he was just afraid.

34.	The accused stated that he was not assaulted whilst in police custody and that he had voluntarily given his answers to the police.

35.	In re-examination, the accused stated that he was not assaulted whilst in police custody but he was assaulted on the first day when interviewed.

36.	This was the defence case.

ANALYSIS

37.	There is no dispute that the accused was caution interviewed in the crime office of the Rakiraki Police Station on 21st December, 2020 by Det/Sgt Nacanieli Draliva and the witnessing officer was PC Joape Qio. There is also no dispute that the accused was charged by PC Amani Waqetia on 22nd December, 2020 in the crime office of the Rakiraki Police Station.   

38.	The prosecution submits that the accused was not assaulted, threatened or treated unfairly or forced to sign the caution interview, to start with the accused was given all his Constitutional rights and he was properly cautioned during the interview and the charging. This was done to ensure that the accused knows that he has a right to remain silent and also knows the consequences of not remaining silent. The accused was also given sufficient breaks, and meals.

39.	Furthermore, the accused did not make any complaints to the police officers about anything and the police officers did not see any injuries on the accused as well. The accused in his interview was asked if he wanted to visit the hospital but the accused refused this request.

40.	There was no threat or assault on the accused by the interviewing officer or the witnessing officer. The accused had promptly appeared in the Rakiraki Magistrate’s Court the Resident Magistrate had asked the accused whether he had any complaints to make against the police officers to which the accused had responded he had no complaints. In respect of the charging officer the accused in his evidence did not make any allegation against the charging officer.    

41.	On the other hand, the accused maintained that he was threatened and assaulted to admit the allegations by the interviewing officer and also threatened that he will be assaulted further. The interviewing officer had also forced the accused to sign the record of interview. The witnessing officer Qio had seen what the interviewing officer had done to him and he had also joined in assaulting the accused. 

42.	Finally, the accused submits that as a result of how the interviewing and the witnessing officer had conducted themselves he had made those admissions in the caution interview. The admissions were not voluntarily given by him and therefore it should not be tendered as part of the evidence by the state.

DETERMINATION

43.	Upon considering the evidence adduced by the prosecution and the defence I prefer the evidence of all the prosecution witnesses.

44.	The allegation of assault raised by the accused was before the caution interview had started. I note that he was offered to be taken to the doctor on two occasions but he had refused. First time was before the caution interview began at Q.6 “Do you wish to visit a doctor? Ans. No.” Secondly, during the interview after lunch at Q. 49 “Do you wish to be seen by a doctor? Ans. No, after this the accused was asked if he had any complaints to make before the interview proceeded at Q. 50 “Do you wish to make any complaint before we proceed further into the interview? Ans. No.”  

45.	The accused knew and understood what he was asked and I am sure if there was any assault on him he would have volunteered his complaint when asked by the interviewing officer or better still he would have agreed to be taken to the hospital where he would have no doubt informed the doctor the details of any assault on him by the police officers.  The accused also did not raise any allegation against the police officers when he appeared in the Magistrate’s Court. He was asked by the learned Magistrate if he had any complaints to make, the copy record of the Magistrate’s Court at Rakiraki of the 23rd December, 2020 mentions the following:

	Defendant:	I accept I gave my answers in caution interview to police.
	Court:		Did you give your answers voluntarily?
	Defendant:	I was scared.
	Court:		Did police beat you or swear at you?
			No
	Court:		Did police do anything to make you scared?
			No, I was just afraid.

46.	I am convinced that the interviewing and the witnessing officer had conducted themselves properly during the caution interview of the accused. In respect of the charge statement I also accept the evidence of the charging officer that he did not threaten the accused anytime during the charging. I also accept the evidence of the accused that this officer had not threatened him to make the statement in his charge.   

47.	I have also noted that during the charging the accused was not asked if he wanted to consult a lawyer from the Legal Aid Commission. The right to counsel put to the accused was only in respect of a lawyer of own choice Q’s 5 and 6. However, the accused did not raise any issue in this regard in his grounds of voir dire or in his evidence that he was prejudiced by the lack of opportunity to consult a legal aid lawyer. 

48.	I accept the accused had told the truth to the Resident Magistrate when he appeared at the Magistrate’s Court.   

	OBSERVATIONS

49.	Although not raised by any counsel, this court takes note of some discrepancies between the caution interview and the charge statement in the Itaukei language and the English translations which needs to be addressed as follows: 

a). Q. 55 of the caution interview Itaukei version has not been translated into the English language;

	b). Q.56 of the caution interview Itaukei language mentions the name of Raijeli but in the English translation it is noted as Mereamo which is incorrect;

	c). Answer to Q.66 of the caution interview in the Itaukei version states “Sa Rauta” meaning it’s okay whereas in the English version it is mentioned as “No, as I was reading it throughout the interview” which is incorrect;
      
	d). In the charge statement at Q. 9 the Itaukei version states the details of the allegations on both counts whereas the English version is not detailed as such. In count two the Itaukei word “ligamu” meaning hand has been used but in the English version the word “fingers” have been used. This is incorrect.    

CONCLUSION 

50.	This court is satisfied beyond reasonable doubt that the accused had given the answers in the caution interview and the charge statement voluntarily on his freewill without any threats, intimidation, assaults, inducement, oppression or by breaches of his Constitutional rights enshrined in the Constitution of Fiji.
 
51.	The caution interview and the charge statement were also conducted in circumstances which was fair to the accused.  In view of the above, the caution interview and the charge statement of the accused is admissible and may be tendered by the prosecution at trial subject to the observations made above.  

52.	Both counsel are to ensure that the English translations of the caution interview and the charge statement are in conformity with the original Itaukei version. Counsel at liberty to make a photocopy of the English translations and then attend to the needful as mentioned in paragraph 49 above in the copied documents within 14 days from today.  

Sunil Sharma
            Judge
At Lautoka	
18 March, 2022

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Accused.