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State v Mara [2016] FJMC 11; Criminal Case 755.2010 (3 February 2016)

IN THE MAGISTRATE'S COURT AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. 755 of 2010

STATE

v

APENISA MARA

Prosecution : WPC Lani
Accused : In Person
Ruling : 3 February 2016

RULING – VOIR DIRE

1. The Accused, Apenisa Mara, challenges the admissibility of his caution interview statement recorded by the police on 3 and 4 November 2010. The Accused state that he was assaulted by the police on 3 November 2010 at his home and at the crimes office. He also raised the issue that he was produce to court after 9 days from the time of the arrest.
   
2. In the caution interview statement, the Accused make partial admission to the police.
   
3. In a voir dire hearing on 4 January 2016, the Prosecution called three police officers and a former police officer as her witnesses. The Accused is the only witness for the Defence.
   
4. The first witness for the Prosecution is Inspector Ajesh Mani, the Crime Officer at the Labasa Police Station. At the time of the arrest he was the crime sergeant at Labasa Police Station. He was the head of operation for this case where he formed a team, including PC Seru, PC Jone, and PC Josefa. They went to search the home of the Accused and there was no complaint from the Accused during the search. He also confirmed that the Accused was not assaulted. Accused was taken to the Crimes Office and there was no complaint from the Accused regarding the search.
   
5. The second witness Detective Jone Drauna, the arresting officer. In his evidence, he confirms that there was no complain and assault during the arrest. After the arrest the Accused was escorted to Labasa Police Station. Items were recovered from the cane farm and there was no complaint from the Accused.
   
6. Third witness is Detective Josefa. He was part of the team who conducted the search and escorting the Accused to the Labasa Police Station. He denied any assault at the time of the arrest and the Accused never complain when escorted to the Police Station.
   
7. The fourth witness is Serupepeli Lailai who is a former police officer. He is the Investigating Officer and the Interviewing Officer in this case. He confirmed interviewing the Accused on the 3rd and 4th of November 2010. He said during the interview, there was no complaint from the Accused. There was no inducement, threat, intimidation made to the Accused. There was no assault.
   
8. The Accused in his evidence state that he was assaulted by PC Josefa and PC Seru Lailai. They assaulted him at his home and again at the Crimes Office. He said he was produce to court after 9 days in the police custody.
   
9. The law in this area was settled by the Fiji Court of Appeal in Ganga Ram and Shiu Charan v R (unreported) Criminal Appeal No. 46 of 1983, where it was stated at page 8;-
   

".....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 (1941) AC 599: DPP v Ping Lin (1976) AC 574. Secondly, even if such voluntaries 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 Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. R v Sanag [1979] UKHL 3; (1980) AC 402 436CE. This is a matter of overriding discretion and one cannot specifically categorise the matters which might be taken into account......".

10. The Prosecution must prove beyond reasonable doubt that the confession made by the Accused was voluntary, and was made without threats, inducement, promise or oppression. Also Prosecution must prove that the Accused was given his rights and if his rights were breached, that he was not prejudiced by the breach.
    
11. In analysing the evidence adduced, there was no evidence from the Accused that he was threatened or forced to make those confession. He stated that he was assaulted without any description or details of the assault on what actually done to him by the police. All the witnesses called by the Prosecution who were police officers at the time of the search, arrest, and interview denied any assault made to the Accused at the material times.
    
12. I have heard all the evidence, I find that the Prosecution evidence from all the four witnesses are consistent and support it other, that there was no assault at the time of the arrest and at the crimes office. There was also no complaint received from the Accused during the search, arrest, and interview.
    
13. In regards to the 9 days in Police custody, there was no explanation from the Accused as to what treatment or where was he during the 9 days. This version of long detention was not put to the Prosecution witnesses when he cross examined them. I reject this version of the evidence.
    
14. After considering all the evidence, I accept the Prosecution's witnesses evidence as credible. I accept what they said.
    
15. Accordingly, I rule that the Accused caution interview statement and charge statement were admissible evidence and can be lead in evidence at trial.
    

........................................
C. M. Tuberi
RESIDENT MAGISTRATE