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State v Bokadi - Ruling Voir Dire [2014] FJMC 65; Criminal Case 448.2012 (25 February 2014)

IN THE RESIDENT MAGISTRATE’S COURT AT SUVA
Criminal Case No.448 OF 2012

THE STATE

V

LEONE ROKOMARAIVALU TUPOU BOKADI
& OTHERS

For the State: WPC Fisher
For Accused 2: In Person

RULING ON VOIR DIRE

1. The accused persons were charged with two counts of AGGRAVATED ROBBERY: Contrary to section 311 (1) (a) of the Crimes Decree, 2009 and two counts of THEFT: Contrary to section 291 (1) of the Crimes Decree, 2009.
   
2. The second accused person challenged the admissibility of the confession which he alleged to made in the caution interview inter alia on the following grounds;
   
   1. The accused was assaulted by Police officers,
      
   2. The statement was obtained oppressively and with inducement,
      
   3. The absence of a witnessing officer during interrogation
      
   4. The police denied the rights of the Accused to be medically examined.
      
3. Accordingly, a voir dire hearing commenced to determine the admissibility of the statement.
   
4. THE LAW
   

The law relating to the admissibility of confessional statement to the police was originated from Section 27 of the Constitution (which at the time was operative).See; State v Chand - Ruling on Voire Dire [2012] FJHC 967; HAC032.2005 (5 March 2012)

Section 27 states as follows:

"1. Every person who is arrested or detained has the right:

(a) to be informed promptly in a language that he or she understands of the reason for his or her arrest or detention and of the nature of any charge that may be brought;

(b) to be promptly released if not charged;

(c) to consult with a legal practitioner of his or her choice in private in the place where he or she is detained, to be informed of that right promptly and, if he or she does not have sufficient means to engage a legal practitioner and the interests of justice require legal representation to be available, to be given the services of a legal practitioner under a scheme for legal aid;

(d) to be given the opportunity to communicate with, and to be visited by:

• (i). his or her spouse, partner or next-of-kin; and
  
• (ii). a religious counselor or social worker;
  

(e) to challenge the lawfulness of his or her detention before a court of law and to be released if the detention is unlawful; and

(f) to be treated with humanity and with respect for his or her inherent dignity.

2. The authorities holding a person who has been arrested or detained must promptly take all reasonable steps to inform his or her spouse, partner or next-of-kin of his or her arrest or detention.

3. Every person who is arrested for a suspected offence has the right:

(a) to be informed promptly in a language that he or she understands that he or she has the right to refrain from making a statement;

(b) to be brought before a court no later than 48 hours after the time of arrest or, if that is not reasonably possible, as soon as possible thereafter; and

(c) to be released from detention on reasonable terms and conditions pending trial, unless the interests of justice otherwise.

4. A person who is ordered to be detained pending tria is, so far as practicable, to be kept apart from conviction persons.

A detained child is, so far as practicable, to be kept apart from adults, unless that is not in the child's best interests". In the Privy Council case of WONG KAM-MING v THE QUEEN (1982) A.C. 247 at 261 in the judgment of LORD HAILSHAM of MARYLEBONE; on the basic control over admissibility of statement, it is stated:

"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 turn for an answer to the voluntariness of the confession." (Underlining mine for emphasis)

5. SHIU CHARAN v R (F.C.A., Crim. App. 46/83). In SHIU CHARAN (supra) it is stated:
   

"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 (1914) 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 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."

6. Further in PIN LIN (supra) at p.182 the test to be applied is succinctly stated as follows:
   

"I cannot myself help regarding the issue as basically one of fact. The trial judge should approach his task by applying the test enunciated by Lord Sumner in a common sense way to all the facts in the case in their context much as a jury would approach it if the task had fallen to them. In the light of all the facts in their context, he should ask himself this question, and no other: 'Have the prosecution proved that the contested statement was voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage excited or held out by a person in authority or (where it is relevant, as is not the case on appeal here) by oppression?'" (emphasis added)

7. The preamble to the Judges' Rules states:"That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a Police Officer and of any statement made by that person, that is shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercise or held out by a person in authority, or by oppression".
   

In Ganga Ram and Shiu Charan v R (1983), the Fiji Court of Appeal outlined the two grounds for the exclusion of confessions as discussed in State v Chand (supra).

"It l 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 – which has been picturesquely described as "the flattery of hope or the tyranny of fear" Ibrahim v R (1914) AC599; 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 police behaved, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. (R v Sanag (1980) A.C.402, 436CE. This is a matter of overriding discretion and one cannot specifically categorise the matters which might be taken into account."

8. The matter is for court to decide therefore whether this interview was conducted freely and not as a result of threats, assaults, promise or inducements made to the accused by a person or persons in authority, the police. If the court found that there has been threat, promise, inducement or unfairness, then the court can ins its discretion exclude the interview. If the accused's common law rights found to have been breached, then that will lead to exclusion of the confessions obtained from him, unless the prosecution can show that the accused was not thereby prejudiced.
   
9. The burden of proving voluntariness, fairness and lack of prejudice to the accused rests at all times with the prosecution. They must prove these matters beyond reasonable doubt. In this ruling this court has reminded itself of that.
   
10. Prosecution called two Police Officers as witnesses.
    

EVIDENCE OF PROSECUTION

11. PW1. DC 3657 Leone Vurakandi
    
    • - PW1 testified inter alia as follows;
    • - "I was the Interviewing Officer for Accused 2.
    • - The interview was in English in Q & A form.
    • - I interviewed the Accused at Samabula police station. Cannot recall the date.
    • - Only the Accused and I were present while the interview took place.
    • - States of the Accused was fit for interview.
    • - There was no threaten or force while interviewing the Accused.
    • - The place where I interviewed the Accused was an open room.
    • - When Accused was brought all our CID officers were present. Strike Back Team brought the Accused and Sgt. Solo brought the Accused for the interview.
    • - During the interview the Accused was given a break to the Accused. He asked for water and given.
    • - Right to Counsel was explained to the accused.
    • - After the statement given by the Accused did not complain on anything.
    • - After the interview the Accused was locked in the cell in the Samabula police station..
    • - Accused signed stating the statement was made on his own free will."
      
12. When the prosecution closed the case for prosecution in the voir dire inquiry the accused opted to give evidence. But, he only stated that he was interviewed in Raiwanqa police station and the Interviewing officer confirmed that it was the Samabula Police station. Nevertheless, the police statement also shows that it was conducted at the Samabula Police Station. It shows either the accused tried to mislead the court or made a statement without any basis.
    
13. The burden of proving voluntariness, fairness, lack of oppression, compliance with the Constitution (if there is non-compliance) and lack of prejudice to the suspect, rests at all times with the prosecution. They must prove these matters beyond reasonable doubt.
    (see; State v Chand - Ruling on Voir dire ( supra)
    
14. Having considered the demeanors of the witnesses and their evidence, concluded that this court satisfied beyond reasonable doubt that the Appellant's caution statement was obtained voluntarily and not by unfairness or oppression. And also satisfied beyond reasonable doubt that there was no assault or threats to the Accused by the police as there was no evidence of assault during the taking of his cautioned interview. The accused also did not complained to this court or any visiting Resident magistrate in the correction center or any police office at Samabula police station any other police station,
    
15. In the outcome I am satisfied that the prosecution has proved beyond reasonable doubt that the accused, after caution was administered to him, understood the questions put to him during the interview and was able to answer them freely and voluntarily and that the answers were properly recorded by the Interviewing officer and duly witnessed. The accused had also at the end of the interview acknowledged that "The statement is true and I have made it on your own free will". The accused has not challenged the statement in the interview and he has not complained about the manner in which it was obtained.
    
16. In the light of the above discussed, I find that the Police had not forced the accused to make the statement and considering all materials before the Court, I am satisfied beyond reasonable doubt that the statement made by the accused at the caution interview was made voluntarily.
    
17. Accordingly, I allow the prosecution to produce the statement of the accused made during the caution interview at the trial proper.
    

28 days to appeal
--------------------------

Lakshika Fernando
Resident Magistrate

On this 25th day of February 2014