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State v Saukelea [2015] FJMC 2; Criminal Case 181.2014 (13 January 2015)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 181/2014

STATE

V

PENISONI SAUKELEA
METUISELA TUINARO

Counsel: Ms.D.Kumar for the State
Mr.Vuki(LAC) for the 1st accused
Ms. Tarai(LAC) for the 2nd accused

Date of Hearing : 08th and 22nd December 2014
Date of Ruling : 13th January 2015

RULING ON VOIR DIRE

1. The accused are charged with one count of Aggravated Robbery contrary to section 311(1) (a) of the Crimes Decree No.44 of 2009.
   
2. Both accused have objected to the admissibility of their caution statements in this case and have filed their voir dire grounds through their learned counsels from the legal aid. For the 1st accused it was alleged that his statement was obtained through oppression at Totogo Police Station by a police officer named Masi and his rights under the Constitution was breached . The grounds for the 2nd accused were that he was not cautioned at the time of the arrest, was assaulted by police officers and also verbally threatened , was forced to admit and his rights under the Constitution and the Judges Rules were breached.
   
3. A Voir dire hearing was conducted on 08th and 22nd December 2014 to determine the admissibility of these caution statements . For the State 04 police officers were called and for the defence both accused gave evidence. Even though all the parties opted to file closing submissions at the close of the hearing, only the counsel for the 2nd accused and the state filed their submissions up to now and therefore I have considered only those for this ruling.
   
4. PW1 was D/Sgt 2560 Mikaele and he said he is in police for past 11 years and in this case he was the investigating officer as well as the interviewing officer for the 1st accused. The interview was conducted on 01/02/2014 in the CID office of the Central Police Station and there was no witnessing officer present. The interview was conducted in English language and the accused was cautioned . The accused was given his breaks and he was given chance to amend but did not do it. The interview was commenced on the 1st and continued till 2nd February . PW1 did not threaten or assault the accused. He also did not see any other police officers behaving in similar manner. The accused did not complain about anything after the interview. The caution statement of the 1st accused was marked as prosecution voir dire exhibit 01. In cross- examination by the counsel for the 1st accused PW1 said that the reconstruction took place on the 2nd February and lasted only 05 minutes. Answering to the questions raised by the 2nd accused’s counsel he said he did not meet the 2nd accused before the interview and also on the 2nd February. He also denied assaulting the 2nd accused with a baseball bat and also handing him to DC Leone for the interview. In re- examination he said that the reconstruction lasted nearly 30 minutes .
   
5. PW2 was DC 3586 Tuwai, the charging officer for the 1st accused and this was done on 03/02/2014 in the Crime office of the Central Police Station. The accused was normal and did not complain about anything. Also PW2 did not notice any marks or injuries on the accused . He did not see anyone assaulting or threating the accused also . The charge statement of the 1st accused was marked as Prosecution voir dire exhibit 02.
   
6. PW3 was DC 4156 Masitabua who conducted the caution interview of the 2nd accused on 02/02/2014 . This was conducted on English language and there was a witnessing officer present. PW3 did not assault the accused or forced the accused. The accused was not forced to admit and PW3 did not see any injuries on the accused. PW3 also did not see any other police officers assaulting or threating the accused and the accused was given the chance to read the interview back. The interview was marked as prosecution voir dire exhibit 03. In cross- examination by the learned counsel for the 2nd accused the witness said that the accused was taken out at 1450 hrs from the cell for the interview . The interview started at 1619hrs on that day. The witness was also shown the entries in the station diary to show that the accused was taken out number of times from the cell block for interrogations . PW3 did not assault or threaten the accused. These entries in the station diary were marked by the defence as exhibits .
   
7. By consent the charge statement of the 2nd accused was marked as prosecution voir dire exhibit 04. Final witness for the State was DC 4427 Batibasaga, the arresting officer of the 2nd accused. On 01/02/2014 after receiving a complaint from a taxi driver about a non-payment the witness arrested the 2nd accused in Garick club. At that time the accused was drunk and only after bringing the accused to the police station the officer got to know about the robbery. The accused was not cautioned as there were other people in the club. In cross- examination by the counsel for the 2nd accused the witness admitted that he did not cautioned the accused in the club or taxi. The state closed their case after this and both the accused opted to give evidence.
   
8. The 1st accused said that on 01/02/2014 he was arrested and taken to Central Police station and Sgt. MiKa took him to Crime office . He told the accused that if the accused did not admit he would be taken to Army barracks. The accused was frightened for his life and admitted the offence. He did not give the statement voluntarily. In cross-examination he said Sgt.Masi did not have anything to do with this case and he was forced to admit this offence. After the interview he did not make any complain and even when he appeared in the Court he did not inform about these allegations to the Court.
   
9. The 2nd accused in his evidence said on 01/02/2014 he was at Garick club and was arrested by a police officer. He was taken to Totogo police station and was locked up. Next day he was interrogated by Mika, Villiame and some other police officers. There was a baseball bat and when he denied someone poked him. They said he would be taken to Army barracks and would not be able to walk for months. The accused was afraid. He was also interrogated number of times on that day . Later he was interviewed in Crimes room by Sgt.Masi and Leone was also there. He did not complain to the Court as the police officers were there also . In cross- examination he said he was not explained about the arrest and Leone interviewed him. The police officers threatened him with a baseball bat but he did not tell anything to the charging officer. He was injured from the assault but did not inform the Court about that. In re-examination the accused said the interviewing officer threatened him.
   
10. Having considered the evidence in the above manner it is pertain to consider law with regard to this kind of applications.
    
11. In Wong Kam-ming v The Queen (1980) A.C. 247, P.C., the Privy Council observed that:
    

"[t]he basic control over the admissibility of statements 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 confessions."

12. In Ganga Ram & Shiu Charan v Reginam Criminal, Appeal No. 46 of 1983 on 13/7/1984, the Fiji Court of Appeal elaborated this in the following manner.
    

"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 [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".

13. The word oppress defined at Oxford Advanced Learners Dictionary 7th Edition as follows:
    

"Oppression –reat somebody in a in a cruel and unfair way, especially by not giving them the same freedom, rights etc, as other people."

14. The English House of Lords, in Priestly v R (1965) 51 Cr App R 1, described oppression&#160"sometsomething which tend to sap, and has sapped, that free will which must exists before a confession is voluntary" (per Sachs LJ)
    
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.'

16. For the 1st accused the main ground taken by the defence was that he was oppressed. He said he was informed by the interviewing officer if he did not admit he would be taken to the army barracks. But he never complained about these to the Court when he was produced in the Court. In the bail hearing the state produced the previous convictions of the accused and therefore he is not a stranger to the Court . Therefore I find that failure to inform about these alleged behaviors of the police officers to this Court raise doubt about his allegations. Also after considering the demenour of the witnesses I am satisfied about the PW1's evidence which I find credible contrary to the accused . Therefore I accept the State position that the 1st accused gave his caution statement voluntarily.
    
17. As for the 2nd accused again the police officers called by the State informed that the accused gave his statement voluntarily. The interviewing officer informed that there was a witnessing officer present during the interview (Sgt. Mik) . But this officer failed to sign the interview and the reason given was that he was busy which I find difficult to accept. Also this witnessing officer informed in his evidence that he did not meet the accused before the interview of the 1st accused or even on the next day (02/02/2014). This was maintained even when he was confronted with the entries in the station diary which showed that a one Metui was handed over to him for interview. This witness also in re- examination tried to control this damage by saying it maybe another accused in the police station. But in contrast the interviewing officer for the 2nd accused admitted this Metui as mentioned in the station diary was the 2nd accused and no one else . Also from the station diary it was revealed that the accused was taken number of times for supposed interrogations. The position taken by the State was that the accused could have some other pending cases at that time. But no evidence was led to substantiate this claim. Also this is consistent with the version presented by the accused that he was assaulted and threatened by the police officers before the interview . Even though he failed to inform this to the Court I accept his explanation about not being aware about the procedure considering that he is a first offender . After considering all these grounds I find that there is doubt in my mind about the version presented by the State regarding the 2nd accused interview. Accordingly I decide that the State has failed to prove beyond reasonable doubt that the 2nd accused gave his statement voluntarily . Therefore his caution statement is not admissible in trial proper.
    

H.S.P.Somaratne
Resident Magistrate