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State v Cikitoga [2013] FJMC 279; Criminal Case 36.2010 (23 July 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT NAVUA

Criminal Case No: - 36/2010

STATE

V

JONE CIKITOGA

For Prosecution : Sgt. Lenitasi

Accused :Mr. Tawake

RULING ON VOIR DIRE

[1] The accused is charged with one count of Indecent Assault contrary to section 154(1) of the Penal Code.

[2] The prosecution wanted to tender the confession made by the accused on 01/02/2010. The accused objected to that.

[3] The accused challenged the admissibility of the confession on following grounds

1. The accused was physically and verbally abused by Police officers,
2. The accused was subjected to assault, oppression and intimidation.

100. There was a breach of his rights under the Judges Rules.
     

[4] A voir dire hearing was started on conducted to decide about the admissibility. The prosecution called 02 witnesses and the accused gave sworn evidence.

SUMMARAY OF EVIDENCE

[5] PW1 was PC Lui who conducted the interview. He said on 01/02/2010 he conducted the interview and gave the accused his rights. After the interview the accused did not lodge any report. In cross examination he said during the interview the complainant was present. But he said in serious offences it was not a proper procedure but in a case like this it is not a big issue. He also admitted the complainant's name was not recorded in the interview.

[6] PW2 was PC Makarita who was station orderly on that day and she recorded things in station diary.

[7] The accused in his evidence said he was assaulted and threatened by police officers. But in cross examination he admitted he did not lodge a report or complaint to the Court regarding that.

THE LAW

[8] 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".

[9] Based on above case, 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

[10] In this case the accused said he was assaulted and police officer used abusive words. He also said he got injured from that assault, but the medical report is in the prison.

[11] The prosecution denied these allegations. But they said the complainant was present during the interview. I believe that was not a proper procedure. In fact PW1 said it may not be a proper thing in a serious offence but in a case like this it was not a big issue. I can't agree with that as the accused is in fact charged with a serious offence.

[12] By allowing the complainant to be present during the interview I believe it was not recorded fairly. Also presence of the victim may have intimidated the accused thereby subjecting him to oppression.

[13] Based on the above grounds I find that the interview was not conducted fairly and he was subject to oppression. Therefore I rule that the confession is not admissible in the trial.

25/07/2013

H.S.P.Somaratne
Resident Magistrate, Navua