IN THE MAGISTRATE'S COURT
AT NAUSORI
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 94/14

State

V

Josua Nabuto Manono (1st Accused)
Bolabasaga Celua Tabaiwalu (2nd Accused)

Representation and Apperances
Prosecution: Ms Serukai (DPP)
Accused: Present and represented by Ms. Raisua (Legal Aid)

Voir Dire
Introduction
The accused persons were charged with Aggravated Robbery, contrary to Section 311 (1)(a) and Theft contrary to Section 291 (1) of Crimes Decree Number 44 of 2009. The defence has challenged the admissibility of the caution interview of the accused persons. They submitted that it was not given freely and voluntarily. A voir dire was held to determine this. 
The Burden and the Legal Test
Justice Madigan in State .v. Temo [2012] FJHC 1122; HAC60.2011 (22 May 2012) stated that "the test in assessing whether an interview is admissible in evidence is whether it was made voluntarily or not, obtained without oppression or unfairness and not obtained in breach of the suspect's Constitutional (now read Common Law) rights. The burden of proving that the statement was obtained voluntarily, without oppression or unfairness and in accordance with common law rights is on the Prosecution and that burden remains on the State throughout. The standard is of course beyond reasonable doubt. I have kept these tests and the burden uppermost in my mind in deciding on this application by the State." 
This Court has noted the guidelines and the tests as pronounced by his Lordship and works on the basis of this guideline. 
The Evidence
The Prosecution called PC 4202 Timoci (Pw-1), DC Emosi (Pw-1), DC Avenai (Pw-3), DC Mesulame Narawa (PW-4), D/Cpl Susana Yaca (PW-5) and DC Isoa (PW-6) as witnesses. Both the accused persons gave evidence. No other witnesses were called by the defence. 
Analysis
This Court notes the legal test laid down and relied upon in State v Temo [2012] FJHC 1122; HAC60.2011 (22 May 2012).This Court has noted all the evidence and scrutinised the caution interview of both the accused persons. 
The 1st accused, Josua Manono alleged that he was punched at his home after the search. He was later taken to Ratu Cakobau Park and punched and assaulted there as well. His family was inside the house when PC Timoci arrested him. At the Police Station he was also assaulted when the statements were being taken. Josua also told the Court that he told the police officers at the reception and they said they will record it. He also told the Court that he informed the Magistrate when he came to Court of the assault. Had submitted a copy of the medical report in Court. The 1st accused was caution interviewed on 19th and 20th February 2014. 
The 2nd accused, Bolabasaga Celua told the Court that he was home with his father, mother and son. He asked for the warrant. They did not show it. He told them that they had no right to arrest him. They collared him. He shrugged them off and freed himself. They assaulted him. The assault happened from back of house to the vehicle. They family was at home asking the officers not to assault the accused. He alleged he was assaulted in the vehicle and later at Ratu Cakobau Park. He alleged he was assaulted at the caution interview and told that they will continue the assault if he did not give the statement. The accused told the Court he admitted so he could be taken to the hospital. At the hospital was given medicine and injection. On 24th February 2014 was produced in Court and complained to the Magistrate and asked to be seen by a Doctor. The Court gave orders for medical but was not medically examined. The 2nd accused was caution interviewed on 21st February 2014.
The Court has noted from the Magistrates records that the accused persons informed the Court of assault by the police. The Court observed that both appeared to have injuries. The Court directed that 2 accused persons be taken to hospital for medical check on 25th February 2014. On 28th February 2014 both accused appeared in High Court. The High Court extended the jurisdiction of the Magistrate to try the case and the case was to be called on 14th March 2014 in the Magistrate’s Court. No medical report of the accused persons was given to Court that was requested by the Magistrate.
The Court from the evidence before it finds that the Magistrate who had the matter called before him note that the accused persons appeared to have injuries when he saw them. The police officers denied assault. The injuries on the accused persons that were sighted by the Magistrate are unexplained by the prosecution witnesses. The injuries on the accused persons were after the arrest and before Court appearance. The accused persons were in police custody and the injuries were from the time they were in police custody. This Court accepts the version of the accused persons and finds that they were assaulted by police and the injuries they received were from the time of the arrest and during caution interview.
Having had the voir dire and noting the evidences of the witnesses this Court finds that the caution interviews of the accused persons were not freely and voluntarily given, the accused persons sustained injuries in police custody which were not explained by the police officers and therefore the caution interviews of the accused persons cannot be tendered and be admitted as prosecution evidence. 

Chaitanya Lakshman
Resident Magistrate
18/01/2017