IN THE MAGISTRATE COURT OF FIJI
AT NADI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 156/11

BETWEEN:

STATE

AND:

SIMELI WAKANIYASI

Prosecution:		Sgt Naidu
Accused:		In Person

Ruling on Voir Dire

1.	The accused was charged for a count of Burglary contrary to section 312(1) of the Crimes Decree, No. 44 of 2009 and a count of Theft contrary to section 291(1) of the Crimes Decree, No. 44 of 2009.

2.	The accused pleaded not guilty to the two counts and matter proceeded for hearing on 30th April 2012.

3.	During the hearing and after two civilian witnesses were called by prosecution the court ordered a voir dire hearing as the accused was unrepresented and the only evidence against him was the caution interview prosecution was relying on to prove their case.

4.	In fairness it was only appropriate and principled that the court test the voluntariness of accused caution interview before it could be admitted as evidence. The onus lies on prosecution to prove beyond reasonable doubt that the accused caution interview was obtained freely and without fear, force, threats or inducement at any time whilst he was in police custody.

5.	His Lordship Kumararatnam J, stated at paragraphs 2 & 3 in the case of State v Eparama Mani, HAC 98/2010:

"The test for the admissibility of statements made by an accused to person in authority is whether they were voluntary, obtained without oppression or unfairness or in breach of any Constitutional Rights now Common Law rights. The burden proving voluntariness, fairness, lack of oppression and observance of common law rights rests on the prosecution and all matters must be proved beyond reasonable doubt.

Evidence of threats of violence, if accepted by the court, is sufficient to raise a reasonable doubt as to voluntariness. If what the accused says is true, it would create an oppressive climate of fear."

6.	Further in the case of State v Rokotuiwai - ruling on voir dire [1996] FJHC 159; Hac0009r.95s (21 November 1996), the court referred to the case of Shiu Charan v R (F.C.A., Crim. App. 46/83) whereby it was stated 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." 

7.	Bearing in mind the above mentioned principles on voluntariness of a confession, I now consider the evidence during the hearing.
 
8.	The first prosecution witness was PW3 – Constable Arunesh. He cautioned interviewed the accused on 19/2/11 in the English language. There were no force, threats or intimidation on accused. No one assaulted or used force on accused. Didn't see any injuries neither did he make any complaints.

In cross examination denies any force, threat, assaults being used on the accused.

In re-examination confirms that accused statement was taken voluntarily. Judges rule was explained to him. Accused was asked whether he was fit for interview and he stated that he was fit to proceed with interview. Witnessing officer did not sign as he forgot to have officer sign.

9.	The second witness was PW4 – Emori Qilu. He was the witnessing officer to interview of accused on 19/2/11. Judges rule was explained to accused. Accused signed interview. He didn't sign interview. There were no assaults, threats or intimidation on accused. No injuries noted on accused and he didn't complain of any assault. He signed conclusion of interview. Accused voluntarily signed interview.

In cross examination says that accused didn't request for medical examination and Judges rule were explained to him. He didn't assault or put chilly on accused at any time.

In re-examination confirms that accused was physically and mentally well.

10.	The third witness was PW5 – Kaliova. He formally charged accused on 19/2/11. Accused made statement voluntarily. There were no threats, offer or inducement made to accused. No assaults on accused neither did any police officer assault accused.

11.	Accused also gave evidence and stated that whilst being locked at Namaka Police Station. At Crime Office Namaka he was handcuffed by Emori than he was blind folded and they were pounding chilly in front of him. He was assaulted and he denied committing the offence. They were asking him about a Wailoaloa case. After being beaten up he became weak and told to sign the confession statement. DC Arunesh kicked him on the chest and he almost lost conscious.

In cross examination he states that he couldn't recall whether he had reported to court and police about the assault. He maintains that he was assaulted by police.

12.	I note from the evidence given for purpose of voir dire that the three witnesses for prosecution all deny any assault, threats, force or inducement being used on accused person whilst he was in their custody. Accused was given his rights. No injuries were noted on accused and neither did accused complain of any assault. According to them accused never requested for medical examination and that he voluntarily admitted the allegation.

13.	The accused on the other hand alleges that he was assaulted and induced to admit the offence by the officers concerned.

14.	When assessing the demeanor of witnesses in court I found the police witnesses to be forthcoming and honest with their testimony. The accused in my view was evasive when answering questions. He told the court that he couldn't recall whether he reported the matter to police or court about the assault.

15.	As I see it, this is a serious allegation being made by accused with regard to police assault. No person in his right frame of mind after being assaulted by police would have forgotten whether he had reported the matter or not to police or court. To not recall whether a report had been made regarding a significant event such as police assault, is unrealistic. The event alleged only occurred last year and everything regarding the alleged assault and any complaints thereafter would have been vividly recalled by accused.

16.	I found the accused to be evasive and not forthright. I accept the evidence by prosecution that accused caution interview and formal charge were voluntarily made. 

17.	However having said that, one issue that concerns me and is that accused had raised that he was kept in police custody for 4 days and from the evidence prosecution accepts that he was kept in police custody for more than 48 hours, since they have not established evidence to indicate otherwise.

18.	Regardless of whether I accept or not accept the accused version of events, the onus is still on prosecution to prove beyond a reasonable doubt, that apart from his interview and charge being taken voluntarily, prosecution need to prove that the circumstances of being kept in custody including the duration in police custody did not overbear the accused will or neither was those circumstances unfair to the accused (R v Sang – supra).

19.	I have considered the evidence and I find there being no evidence provided by prosecution with regard to accused circumstances whilst in custody. No station diary nor cell book has been tendered as evidence to assist the court in properly assessing whether accused was not unfairly treated whilst in police custody. Was he given meals? Was he given rest? Why was he kept in custody for 4 days? The list is not exhaustive but these are some of the reasonable doubts which come into mind when considering the accused circumstances whilst in custody. As mentioned earlier, the prosecution having the onus should have called evidence to alleviate the said doubts. No such evidence was called.

20.	In the absence of such evidence I find that prosecution have failed to prove beyond a reasonable doubt that accused was treated fairly and there was no overbearing of his will whilst in police custody for those 4 days.

21.	Any such doubts must go in favor of the accused hence I find the caution interview and formal charge of accused inadmissible as evidence.

22.	I rule so accordingly.

______________________________
Samuela Qica
Resident Magistrate

3rd December 2012