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State v Qaqa [2012] FJMC 348; Juvenile Case 01.2009 (13 December 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF NAVUA

Juvenile Case No: - 01/2009

STATE

V

EPELI QAQA

SIRELI VAREA

For Prosecution : Mr. Niudamu from ODPP

2nd Accused : Mr. Tawake from the Legal Aid

RULING ON VOIR DIRE FOR THE 2nd ACCUSED

[1] Both accused are charged for Defilement of a Girl between 13 and 16 Years of Age contrary to Sec 156(1) (a) of the Penal Code.

[2] The prosecution wanted to tender the confession made by the 2nd accused on 30 Nov 2009 to the police. The defence objected to tendering the document on following
grounds.

1. The police officers did not inform him about the Legal Aid assistance
   
2. The accused was not explained about his allegations
   

100. The accused was assaulted and bullied by the police officers.
     

4. The accused was not given the chance to have a counsel present during the interview
   
5. He was not explained about the right to silence and not to answer the questions.
   

[3] A voir dire hearing was conducted on 09 Oct 2011 and concluded on the same date. The prosecution called 2 police officers as witnesses and the 2nd Accused gave sworn evidence.

SUMMARAY OF EVIDENCE

[4] The prosecution called 2 witnesses. The accused gave sworn evidence in the hearing. I will briefly look in to the evidence given by all witnesses before dealing with the relevant law on voir dire.

[5] PC Apimeli ( PW1)- The officer who conducted the interview of the 2nd Accused. He said on 30 Nov 2009 he received a instructions to conduct the interview. He cautioned the accused and conducted the interview on Fijian language. The suspect's aunty was the witness. The accused was explained about the legal counsel and there were no threat or intimidations. After the interview the accused and the aunty signed the interview. The PW1 also said he did not assault the accused. The prosecution also tendered the interview as EX-01.

[6] In cross examination the PW1 said he did not assault the accused and the accused cooperated. The interview started after the accused's aunty came there. The accused was explained about right to counsel in Fijian language and also explained about the legal aid and it's free but admitted he did not write it down.

[7] Cpl Paula (PW2 ) -The charging officer. He charged the 2nd accused on 01 Dec 2009. He said the aunty was there and the PW2 did not see any injuries. The accused did not complain about any assault and admitted the offence.

[8] The PW2 said in cross examination said when he charged no one was present apart from him and the accused. He admitted there should be independent witnesses present during that time.

[9] Sireli Varea (2nd accused)- He said before his aunty came he was questioned by the police. He further said he did not admit the crime and the PW1 punched his head and kicked his chest. After that he admitted that. The accused admitted he did not complain to the aunt. The 2nd accused said he was scared and he admitted after that the pw1 assaulted him.

[10] In cross examination the 2nd accused said throughout the interview his aunt was present and he felt the pain. He further admitted that he did not go to the hospital and police would have taken him. The 2nd accused also said only after one week he told about that to his aunt.

[11] In re-examination he said he was punched on head and chest and he did not inform that to anyone or even the magistrate about it. The defence did not call any other witnesses and also closed their case.

THE LAW

[12] In the case of Ganga Ram & Shiu Charan v Reginam Criminal, Appeal No. 46 of 1983 on 13/7/1984, Fiji Court of Appeal stated:

"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 (1914) 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".

[13] Therefore I find that the prosecution needs to prove that the statement was obtained voluntarily and without oppression. Also the prosecution needs to prove that the statements were obtained without any breaches of the accused's rights, and if there were any breaches, there was no resulting prejudice to the accused. The standard of proof is that of beyond reasonable doubt.

ANALYSIS OF THE EVIDENCE

[14] Based on the evidence given in the hearing now I will consider the grounds raised by the defence.

[a] The accused was not explained about the Legal Aid - The PW1 said in his evidence that he has explained about the Legal Aid and also in cross examination reaffirmed that. The court also notes that in the caution interview from Q-07 to Q-10 the accused was explained about the right to seek a counsel or Legal Aid. The accused also in his evidence did not mention about that. The PW1 also said he told the accused the Legal Aid assistance is free but failed to put that in to the statement. I have no reasons to doubt the PW1's evidence and reject the above ground.

[b] The accused was not explained about the allegations - The defence did not cross examine the prosecution's witnesses about this nor the accused raised this in his evidence. Also in Q-03 of the caution interview I note that the accused was explained about the allegation in Fijian language and answering Q-06 the accused admitted he understood the allegations. Therefore this ground also is not valid.

[c] The accused was not given a chance to have a counsel present during the interview - Again the defence did not raise this during the cross examination nor the accused mentioned about this in his evidence. Also as described in first ground the accused was explained about the right to have a counsel. The accused was given the right but he did not exercise that. He also had his aunt during the interview. Therefore the court rejects this ground too.

[d] The accused was not explained about right to silence and not to answer questions - The defence did not raise this ground in the hearing too. Also this court has no reason to disbelieve the PW1. He said he has cautioned the accused and in Q-03 and Q-55, the court notes that the accused was explained about this right. Therefore I reject this ground too.

[e] The accused was assaulted and bullied by the police officers - I will deal with this ground in detail since the defence as well as this court were concerned mainly with this point. The defence alleged that the PW1 assaulted the accused on his head and chest and because of that he admitted this offence. The prosecution called the PW1 who recorded the interview. He denied assaulting the accused.

Even though the accused said this in his evidence, he did not complain about this to a magistrate. Nor is there any evidence that he complained about the assault to police. Also his aunt was present during the interview but the accused did not mention about the assault to her too. The accused said he told about the assault to the aunt only after a week but did not call her at the hearing to confirm that. Therefore this ground also fails.

[15] The court also had the chance to observe the witnesses from both sides and is satisfied with the prosecution's witnesses. They were consistent with each other and defence failed to raise a doubt about their evidence.

[16] For the above mentioned reasons I am of the view that the prosecution has proved beyond reasonable doubt that accused's statement was obtained as the guidelines set down in Ganga Ram & Shiu Charan v Reginam and therefore admissible as an evidence in the trial.

13/12/2012

H.S.P.Somaratne
Resident Magistrate, Navua