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State v Biu [2013] FJMC 361; Criminal Case 1153.2012 (26 June 2013)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 1153/12

State

V

Temo Tawake Biu

Prosecution: Sgt Jiten
Accused: Present – In person

VOIR DIRE RULING

Introduction

The State seeks to adduce into evidence the record of a cautioned interview with the accused made at Samabula Police Station on the 25th August 2012. The accused had objected to the admissibility of these documents on the grounds of assault. The accused who was self-represented was advised of his right to give evidence, call witnesses and cross-examine the Interviewing officers and other witnesses called by the prosecution.

The Test

This Court notes that the test in assessing whether an interview is admissible in evidence is whether it was made voluntarily or not, obtained without oppression or unfairness and not obtained in breach of the suspect's Constitutional (now read Common Law) rights. The burden of proving that the statement was obtained voluntarily, without oppression or unfairness and in accordance with common law rights is on the Prosecution and that burden remains on the State throughout. The standard is of course beyond reasonable doubt. I have kept these tests and the burden uppermost in my mind in deciding on this application by the State. Any evidence of assault if proven would amount to an attack on the voluntariness of the statement in that assault would sap the will of the accused, and render his participation as unwilling.

The Evidence

The accused apart from his allegation that he was assaulted did not give evidence but remained silent. No adverse inference is drawn from that. He neither had any witnesses, nor he cross-examined the interviewing officer who conducted his caution interview.

To prove its case the State called evidence of the Interviewing officer. No other officer was present at the interview. DC Amani who conducted the interview told the Court that he conducted the interview in Fijian and the accused was interviewed in the Crime Office. The interview was recorded in question and answer format. Accused was given right to legal counsel. No threat or inducement was made to the accused. The accused gave his statement freely and voluntarily.

Analysis

The evidence of DC Amani was credible. Hey were at pains then to establish the true involvement of the accused in this homicide. This Court believes him and finds his evidence reliable.

While the accused in giving evidence does not have to prove anything to me, the State having to prove their case beyond reasonable doubt. The accused did not even put the accusation to the Interviewing officer that he was assaulted despite proper explanation by this Court to the accused of the procedures and what the Court was doing at this Voir Dire stage.

Ruling

This Court finds that the answers given by the accused's interview was given freely and voluntarily. There is no evidence before me of oppression which would cause me to exercise my discretion to exclude the evidence.

The cautioned interview and the charge statement are both admissible and may be led by the Prosecution in the trial on the general issue.

Chaitanya Lakshman
Resident Magistrate

26th July 2013