IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case No: - 1464/2008

STATE

V

BILIQITA TOKIVAKADUVA
JOJI SAIQA
ILAISA NACA
 
 For Prosecution : Mr. Nivdamu for the State 

 1st and 3rd accused : In person 

Date of hearing : 19 December 2013
Date of Ruling : 20 December 2013 

RULING ON VOIR DIRE FOR THE 1St AND 3nd ACCUSED

1.	The accused are charged with following offences.

a)	Robbery with Violence contrary to section 293(1) (b) of the Penal Code.
b)	Unlawful use of Motor Vehicle contrary to section 292 of the Penal Code.
c)	Driving Motor Vehicle without Driving License contrary to section 56(3) and 114 of the LTA Act 

2.	All the accused are objecting to tendering their caution statements in the trial. The reason for the 1st and the 3rd accused are that they were assaulted by the police officers whilst in custody and because of that they admitted the offences in their statements. 

3.	 Voir dire hearing was conducted on 19 December 2013 and the prosecution called four police officers as witnesses. The two accused gave evidence on behalf of them. 

4.	PW1 was PC Amani, the interviewing officer of the 1st accused. He was also part of the team that arrested the 3rd accused. He conducted the interview of the 1st accused on 04 June 2008 and all the rights were given. He also noticed the 1st accused with bruises on both eyes before the interview. In cross examination for the 1st accused he denied assaulting the accused and also said the accused did not ask to go to hospital but he was taken there. Answering to the questions raised by the 3rd accused he said he did not assault the 3rd accused. 

5.	 PW2, WPC Sanjeeta who was the duty orderly on 04 June 2008. She said that the 1st accused came to see his wife on that day and she saw him with injuries in the eyes. His visit was noted in the station diary. In cross examination she said she did not record the injuries of the 1st accused as he was not a suspect at that time.

6.	Third witness was Cpl Vijay and he said WPC Sanjeeta(PW2) informed him about injuries of the 1st accused. 

7.	 The last witness for the State was DC Clini, the interviewing officer of the 3rd accused. He also arrested the 3rd accused. He also denied assaulting the 3rd accused and said all the rights were given to him. Answering to the questions raised by the 3rd accused he said the accused was in cell block from the time he was brought to the station. 

8.	The prosecution closed the hearing after calling this witness. Both accused opted to give sworn evidence. 

9.	The 1st accused said he came to see his wife on 04 June 2008 and police arrested him at the station. He was assaulted and because of that he admitted the offences. In cross examination he said he had no injuries before he came to the station and he informed the magistrate about the assault when he was produced in the Court. 

10.	 The 3rd accused said on 04 June 2008 he was arrested and was assaulted in the vehicle and was also assaulted by Amani and Setoki (police officers) in the station until he admitted the offences. In cross examination he said he did not compliant to the Court about this but told his parents about the assault. 

11.	 Having considered the evidence I will briefly look into the law with regard to this kind of applications. 

12.	The classic statement of the common law rule as to admissibility of confessions was that of Lord Summer in Ibrahim v R [1914] AC 599 at 609: 

"It has been long established ….. that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntarily statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority." (Murphy on Evidence 10th Edition at page 300) 

13.	In Fiji this was discussed in the case of Ganga Ram & Shiu Charan v Reginam Criminal, Appeal No. 46 of 1983 on 13/7/1984, where the 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)AC574.

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. This is a matter of overriding discretion and one cannot specifically categorize the matters which might be taken into account".

14.	Therefore the prosecution got the onus to prove that the statement was obtained voluntarily and without use of force, threats, oppression or any inducement. 

15.	Also the prosecution needs to prove that the statements were obtained without any breaches of the accused's rights (Judges Rules) and if there were any breaches, there was no resulting prejudice to the accused. 

16.	The burden lies on the prosecution and standard of proof is beyond reasonable doubt. In Miller V Minister Of Pension [1947] 2 AER Lord Denning explained the 'proof beyond reasonable doubt' as 'That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of the doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor, which can be dismissed with the sentence "of course it is possible but not in the least probable", the case is proved beyond reasonable doubt, but nothing short of that will suffice.' 

17.	 Both accused challenged the admissibility on the ground that they were assaulted. With regard to the 1st accused both parties admitted that he had injuries in his face. The state's contention is that he received injuries before he came to the station.

18.	The 1st accused alleged that he was assaulted in the station which compelled him to admit to these offences. He made a complaint to the magistrate about these assaults when he was produced in the Court which enhances his credibility. 

19.	 The state failed to produce any documents to show that the accused had injuries before he was arrested. PW2 said she noticed injuries when he visited the station but as he was not a suspect did not record them in the station diary. If that is the case why did the police fail to record these injuries in cell book or other diaries when he was arrested in the police station? I am also satisfied with the demeanor of the 1st accused in the voir dire hearing. Therefore I decide that the prosecution failed to prove that the 1st accused gave this statement voluntarily.

20.	The 2nd accused took the same ground of assault in his challenge. But he never complained about these to the Court when he was produced. Although he said he told his parents about the assault they were not called as witnesses. Also with regard to the interview of the 3rd accused the prosecution's witnesses were consistent and I am satisfied with their testimonies. 

21.	Therefore I decide that the Caution Interview of the 3rd accused is admissible at the main hearing. I also decide that the caution interview of the 1st accused is inadmissible. 

20 December 2013.

H.S.P.Somaratne
Resident Magistrate, Suva