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State v Kotobalavu [2014] FJMC 101; Criminal Case 487.2010 (6 June 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 487/2010

STATE

V

TUIMOALA KOTOBALAVU

PC Josuha for the State

The accused in person

Date of Hearing : 06 June 2014
Date of Ruling : 06 June 2014

RULING ON VOIR DIRE

[1] The accused is charged with another for 04 counts of Robbery with Violence contrary to section 293(1) (b) of the Penal Code .

[2] The accused had made admissions in his caution statement dated 28th September 2009 and now he is challenging the admissibility of that in this Court.

[3] According to the voir dire grounds filed on 31st March 2014 the accused alleged that he was assaulted by CID officers and he was threatened, oppressed and forced during and after the interview.

[4] A voir dire hearing was conducted today in which the prosecution called two officers ( interviewing officer and charging officer) whilst the accused gave evidence for the defence .

[5] PW1 was DC 2985 Gauna conducted the caution interview of the accused on 28th September 2009. He gave the accused all his rights and he did not assault or threaten the accused before or during the interview . No one else assaulted the accused. He also said that the accused was not intimidated or oppressed during the interview. He also did not notice any injuries before the interview and the accused did not complain about anything. The caution interview was marked as Prosecution voir dire exhibit 01. In cross- examination he said the accused did not inform him that he wants to go to hospital and reaffirmed that he was not assaulted.

[6] PW2 was DC 3476 Colasi, the charging officer and he also said that the accused did not complain about anything and he did not notice any injuries. The charge statement was marked as Prosecution voir dire exhibit 02.

[7] The accused in his evidence said he was assaulted by the arresting officer and during the interview by police officers. He informed the Magistrate about that when he was first produced to the Court and the medical report was tendered to the Court on the next date. Also he was remanded in this case in the beginning. .

[8] Now I would briefly consider the relevant law principles in this kind of application.

[9] The basic control over admissibility of statement was discussed in the judgment of Lord Hailsham of Marylebone in the decision of the Privy Council in Wong Kam-Ming v. The Queen (1982) A.C 247 at 261 (as cited in the Fiji High Court case of State v. Rokotuiwai – ruling on voir dire [1996] FJHC; HAC009r.95s (21 November 1996),

"The basic controls over admissibility of statement are found in the evidential rule that an admission must be voluntary i.e. not obtained through violence, fear or prejudice, oppression, threats and promises or other improper inducements. See decision of LORD SUMNER in IBRAHIM v. R [1914] UKPC 16; (1914-15) AER 874 at 877. It is to the evidence that the court must for an answer to the voluntariness of the confessions".

[10]This rule was also strongly emphasized in the Fiji Court of Appeal case of Shiu Charan v. R (F.C.A., Crim. App. 46.83),

"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 (194) 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 a 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".

[11] Madame Justice Shameem succinctly stated in State v. Rokotuiwai (supra) at pg. 4,
"It is for the prosecution to prove beyond reasonable doubt that the admissions are voluntary. I remind myself of that...It is essentially a matter of fact".

[12] 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.'

[13] I have considered the evidence presented by both parties in this hearing. From the Court record I note that when the accused was presented in the Court on 29th September 2009 the counsel for the accused informed that the accused was assaulted in custody. The Court also noticed injuries near to the eye.

[14] In the medical report dated 30th September 2009 it was also noted injuries in the accused . The prosecution failed to explain how the accused got injured in the custody .

[15] Based on the reasons mentioned above I am not satisfied that the State has managed to prove that the accused gave his caution statement voluntarily.

[16] Therefore I decide that the caution statement of the accused is not admissible in the trial proper.

H.S.P .Somaratne
Resident Magistrate