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State v Uluisolevu [2010] FJMC 94; Criminal Case 282 of 2009 (23 July 2010)

IN THE FIRST CLASS MAGISTRATE’S COURT
AT NAUSORI
FIJI ISLANDS

Criminal Case No: 282 of 2009

STATE

V

VILIAME ULUISOLEVU

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution: Inspector S. Ali
Accused : Present and Represented by Mr Semi Leweniqila

RULING

The accused was charged with 3 counts of Indecent Assault.

The Prosecution tendered the caution interview of the Accused and the Defence has challenged the admissibility of the caution interview

The Law

This Court relies on the principles applied by Justice Mataitoga in State v Alifereti - Ruling 1 [2008] FJHC 208; HAC018.2005 & 040.2007 (15 July 2008) where he stated “the applicable legal principles in Fiji with regard to the admissibility of interview statements given to the police by accused persons was established by the Court of Appeal in Ganga Ram & Shiu Charan v R. FCA Crim App. Case No: 046 of 1983, after reviewing the House of Lords decision in Ibrahim v R [1914] AC 599, the Privy Council decision in DPP v. Ping Lin [1976] AC 574 and the House of Lord decision in R. V. Sang [1980] AC 436. It stated the principle as follows:

‘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 tyranny of fear. Second, 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 behave, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or unfair treatment...’

The above test must be applied in a common sense way to the facts in their context, as established by the evidence adduced in the trial within trial hearing. In Ping Lin (supra) the Privy Council states:

‘I cannot myself help regarding the issue as basically one of fact. The trial judge should approach his task by applying the test enunciated by Lord Sumner (in Ibrahim v R) in a common sense way to all the facts in the case in their context as a jury would approach it if the task had fallen on them’

On what may constitute ‘oppression’ sufficient to render a statement involuntary, the English House of Lords, in Priestly v R (1965) 51 Cr App. R 1, described oppression as ‘something which tend to sap, and has sapped, that free will which must exists before a confession is voluntary.’(per Sachs LJ). Whether or not there is oppression in an individual case depends upon many elements, including the length of time intervening between periods of questioning, whether the accused person had been given proper refreshments or not and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid or an old man, or somebody inexperienced in the ways of this world may turn out not to be oppressive when one finds that the accused person is of tough character and an experienced man of the world: Archibold 39th Edition paragraph 1380.

Lord McDermott in Priestly (supra) observed that: ‘oppressive questioning is questioning which by its nature, duration or other attendant circumstances (including the fact of custody excites hopes of release) or fears, or so affects the mind of the subject that his will crumbles and he will speak when otherwise he would have stayed silent.’

Beyond Reasonable Doubt

When the court is making its determination on the issues of voluntariness, the standard of proof that must be satisfied is, beyond reasonable doubt that the statements were voluntarily given to the police. In this ruling I have reminded myself of that. The onus of proving beyond reasonable doubt that the statements in questions were obtained voluntarily and fairly is on the State.”

Justice Pain in State v Wati [1997] FJHC 209; Hac0006d.95s (19 May 1997) stated that “the law on this topic is well settled. There are two broad grounds on which a confession can be excluded. If the prosecution has not proved the statement to be voluntary or if it was obtained unfairly (R v Horsfall [1981] 1 NZLR 116; Kamlesh Lata v Regina Fiji Court of Appeal No. 71 of 1983, decision 13th July 1984). A statement is not voluntary if it is obtained either by fear of prejudice or hope of advantage excited or held out by a person in authority or by oppression (Ibrahim v The King [1914] AC 599; DPP v Ping Lin [1976] AC 574; Principle (c) in the Preamble to the Judges Rules; R v Priestley 1965 51 Cr. App R 1). The onus is on the prosecution to prove that the statement was made voluntarily. That is proof that it was not obtained by such fear, hope or oppression. The standard is proof beyond reasonable doubt. (Wong Kam-ming v The Queen (P.C.) [1980] AC 247; Kamlesh Lata v Regina (supra).

The truth or otherwise of their statements is not in issue on the voir dire. It is simply a question of onus of proof. The voluntariness of the statements has not been proved beyond reasonable doubt. A decision based on some lesser standard may well have been different."

The Evidence

The Prosecution in this case called 3 witnesses. The defence called the accused and his wife, Asena.

Courts Analysis and Ruling

This Court takes note of the law on no case to answer and the host of cases cited above.
I have carefully considered and evaluated all the evidence as it has been given and in preparing this decision. The interviewing officer of the accused agreed in cross examination that some record is correct and some in-correct. He also was not aware when the accused came in to the police Station and he did not even bother to check when he was brought in. The other officer present during the interview could not say with certainty if the interviewing officer asked the accused to confess.

The accused told the court he was read the victims statement by the police and was asked to admit everything. He is not well educated and he accepted what the officer told him and signed. He signed because he was promised the case will be completed. In cross examination the accused told the Court that he complained to his wife when she visited him. The wife of the accused confirmed his version.

The Court notes that the accused was 76 years old when he was interviewed. He looks frail. The Court agrees that he is slow and has little education. The police in this case would have done well by making sure a family member was present when he was interviewed. It is not only good enough to inform of the rights when dealing with vulnerable persons, including women, children and the elderly, attempts must be made to ensure that someone is present for the vulnerable person to confer with. The law I have cited above clearly states that "what may be oppressive as regards a child, an invalid or an old man, or somebody inexperienced in the ways of this world may turn out not to be oppressive when one finds that the accused person is of tough character and an experienced man of the world: Archibold 39th Edition paragraph 1380.

When the court is making its determination on the issues of voluntariness, the standard of proof that must be satisfied is, beyond reasonable doubt that the statements were voluntarily given to the police. In this ruling I have reminded myself of that. The onus of proving beyond reasonable doubt that the statements in questions were obtained voluntarily and fairly is on the State. This court is not satisfied beyond reasonable doubt that the statement was fairly obtained and therefore the caution interview is not admitted as evidence.

Chaitanya Lakshman
RESIDENT MAGISTRATE

23/07/2010