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State v Lena [2020] FJMC 43; Criminal Case 971 of 2018 (7 February 2020)

IN THE MAGISTRATES’ COURT OF FIJI
AT LAUTOKA
EXTENDED CRIMINAL JURISDICTION


High Court Criminal Case No. 194 of 2018
Criminal Case No. 971 of 2018


STATE


v.


SAIRUSI LENA


For the State: Sergeant Theodore Lew
For the Accused: Mr. Varinava, of counsel, of the Legal Aid Commission


___________________________________________________________________________

VOIR DIRE RULING

___________________________________________________________________________


  1. You made admissions against interest to the Police when you were interviewed by them on 18 October 2018. Your grounds of challenge are that your interview was unfair in that you were not given the opportunity to exercise your right to a lawyer under a scheme of legal aid and moreover, you were misled in respect of the consequences of remaining silent.
  2. Section 13 (1) (a) (ii) and (iii) and section 13 (1) (b) of the Constitution guarantees every arrested person the right to be informed promptly, in a language or he she understands of the right to remain silent and the consequences of not remaining silent. Moreover, he or she has the constitutional right to remain silent.
  3. Section 13 (1) (c) of the Constitution guarantees every arrested person the right to consult with a legal practitioner of his or her own choice in private in the place where he or she is detained, and if he or she does not have sufficient means to engage a legal practitioner and the interests of justice so require, to be given the services of a legal practitioner under a scheme for legal aid.
  4. As was said in Ibrahim v R [1914] 599, at 609 per Lord Sumner:

“It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.”


  1. In State v Fong [2005] FJHC 718; HAC010.2004S (15 February 2005), the High Court of Fiji at Suva per Gates J. (as he then was) held:

“[4] It is trite law that for a confession to be admissible in a court of law it must be shown to have been made freely and voluntarily. In Warickshall’s case (1784) 1 Leach CCR 263, 4th Ed., Eyre C B said:


"a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape, when it is to be considered as the evidence of guilt, that no credit ought to be given to it, and, therefore, it is rejected:"


[5] Long ago in Taylor’s Law of Evidence (8th Ed. Pt 2 Ch.15 s.872) it was written:


"The material question consequently is whether the confession has been obtained by the influence of hope or fear; and the evidence to this point being in its nature preliminary, is addressed to the judge, who will require the prosecutor to shew affirmatively, to his satisfaction, that the statement was not made under the influence of an improper inducement, and who, in the eventany doubt subt subsisting on this head, will reject the confn."

"


[6] This passage was adopted as a corrtatement of the law by a 5 judge Court of Appeal in The Queen v Thompson [1893] UKLawRpKQB 74; [1893] 2 QB 12. For voluntariness to be satisfactorily proved, proot be provided to the standard of beyond reasonable doubt: Callis v Gunn [1964] 1 QB 495; DPP v Ping Lin [1976] AC 514.&#822>

  1. On 13th July 1984, the Fiji Court of Appeal in Ganga Ram & Shiu Charanv Reginam, Criminal Appeal No. 46 of 1983, said the following,

"....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 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 ...."


  1. Section 13 (1)(a)(ii) and (iii) and section 13 (1)(b) of the Constitution guarantees a suspect the right to remain silent, to be informed of that right; and to be informed of the consequences of not remaining silent.
  2. I will first deal the Defendant’s allegation that his Interview was materially unfair because the Police had watered down his right to have the consequences of not remaining silent explained to him. The impugned portions of the Interview are as follows:

“Q14. Before we proceed any further, I wish to inform you of your right to remain silent throughout the interview, but if you will not answer any questions we will not be able to get your side of the story and that whatever evidence we have you will be prosecuted for it. Do you understand?

  1. Yes

Q15. I wish to inform of the consequence of remaining silent that whatever you say in this record will be used against you in the court of law. Do you understand?

  1. Yes.”

Emphasis added


  1. The Interviewing Officer testified and said that she likely did not type in the word “Not” as in “I wish to inform of the consequence of not remaining silent.” Her answer in cross examination was as follows: “It might have been a typing error. I did not type in the word “Not” but I did verbally explain to him the consequences of not remaining silent.” In re-examination, she said that she explained that “he was to answer whatever he wished and that “no one could force him.” She testified that she told him that “whatever he did say would be recorded in writing.” I accept this evidence as true. I further note as a separate and distinct point that the Defence did not take issue with the fact that the Defendant had been told that whatever he said in the record would be used against him in a court of law.
  2. In State v. Fusi, High Court Criminal Case No. HAC 223 of 2017 (unreported, 15 November 2018), Rajasinghe J. dealt with section 13 (1)(a)(iii) of the Constitution. The Interviewing Officer had asked Mr. Fusi the following:

“Q: Under the provisions of the Constitution you have a right to remain silent but in that case we would not be able to get your side of the story and as such we may have to proceed further and prosecute you for the allegation with the evidence currently on hand. You shall be feel free to make your choice now, are you willing to remain silent or will you make a statement now?”


  1. Mr. Fusi said that he would make a statement. His Lordship, Mr. Justice Rajasinghe held:

“10. Having carefully considered the above questions, it is clear that the interviewing officer has not explained the accused the consequence of not remaining silent. Instead, he has told the accused that if he exercises his right to remain silent, he won’t be able to tell his side of the story that would allow the Police to continue to prosecute him with the available evidence. This has created a condition that unless the accused made a statement, the police would prosecute him.”


  1. In State v Matia, Criminal Case No. HAC 260 of 2018 (unreported, 13 March 2019), Goundar J. held:

“[6] In Fiji, the constitutional right to remain silent must be administered in unqualified terms. Otherwise, the right will become a dead letter. In the present case, the right to remain silent was qualified by an incentive to tell his side of the story to avoid being charged based on the allegation. The qualifications placed on the right to remain silent are inappropriate and objectionable.”


  1. In State v. Arvind Chand, Rokotuinasau and Drigita, High Court Criminal Case No. HAC 362 of 2017S (unreported, 12 July 2019), Temo J. held that stating that the consequence of not remaining silent was that “we may have to proceed further and prosecute you for the allegation with the evidence currently on hand” was proper and fair. He held that it was not a threat but simply a statement of fact on the part of Police Officers: see [23].
  2. I also consider State v. Ravutanasau [2019] FJHC 1100; HAC377.2017 (31 October 2019). In Ravutanasau, Rajasinghe J. looked to another jurisdiction that had moved beyond the language of Judges’ Rule 2. In the United Kingdom by virtue of section 34 of the Criminal Justice and Public Order Act 1994, judges have the discretion to draw an adverse inference from a defendant failing to mention a fact during his or her record of interview which is subsequently relied on in his defence at trial. Because of that provision, Defendants in the United Kingdom are warned that a consequence of remaining silent is that the Court may not believe them if they choose not to testify in Court.
  3. There is obviously no need for the Police in Fiji to put a section 34 of the UK Criminal Justice and Public Order Act 1994 type of caution to suspects in Fiji. It is also equally clear that the Fiji Police Force are not borrowing from the United Kingdom when they tell suspects that they have the right to remain silent but if they do, the Police would not have their side of the story and just so they know, there is enough evidence to prosecute them in any event.
  4. They may perhaps be borrowing from the practice of law enforcement in some States in the United States. There is a danger in that because not every State will have operate the same way and there are different constitutional requirements across States and then an altogether different set of procedural safeguards that apply at the Federal level. Our officers would do better, if they intend to borrow from the United States to put the full Miranda warning to our suspects.
  5. Or better still, do away with this heavy handed approach and simply tell suspects that they have the right to remain silent and that the consequence of not remaining silent is that anything they did say would be taken down in writing/recorded and may be given in evidence against them before a court of law. That is the only consequence that matters in the Fijian criminal justice context.

  1. I accept that the Investigating Officer, her typing error notwithstanding had informed the Defendant that the consequence of not remaining silent was that whatever he did say would be taken down in writing and would be used in Court against him. I am equally satisfied that he had notice that whatever he said in the record would be used against him in a court of law. I accept that the Defendant understood that and he signed to acknowledge that he did understand that.
  2. If that was all that was said, there would be no legal issue to take. But that is not all that that was said. I will not duplicate paragraph 8 above but I do pause here to consider what it may mean to a layperson to hear that he was given the opportunity to give his side of the story. To give one’s side of the story is to give one’s own account of what transpired as is evidenced by the MacMillan Dictionary definition of the phrase ‘someone’s side of the story.’ It is defined to mean “your account of what happened, when someone else gives a different account.”[1]
  3. It was and is a clear and open invitation to the Defendant to not remain silent. To invite someone to give their side of the story is to invite them to speak. As the Collins English Dictionary aptly explains, “if someone tells you their side of the story, they tell you why they behaved in a particular way and why they think they were right, when other people think that person behaved wrongly.”
  4. The Interviewing Officer did more than invite him to waive his right to remain silent. She told him:

“ ...if you will not answer any questions we will not be able to get your side of the story and that whatever evidence we have you can be prosecuted for it.”(My underlining).


  1. In essence, the Interviewing Officer told the Defendant that choosing to exercise his right to remain silent meant that the Police would not get his side of the story and that the evidence they had at hand at that present time was sufficient for them to prosecute him anyway. It was a clear signal that unless he told them his side of the story, a prosecution was imminent. Implicit in this heavy handed line is the dangled carrot that perhaps telling the Police something might result in their staying their hand against him. That it might save him from prosecutions.
  2. That is unconstitutional. Section13 (1) (a) and (b) of the Constitution is clear. Not only must a suspect be informed promptly in language he or she understands of his or her right to remain silent and the consequences of not remaining silent; he or she enjoys the right to remain silent. I agree with Goundar J. and Rajasinghe J. that the constitutional right to remain silent must be administrated in unqualified terms lest the right become a dead letter.
  3. It must be remembered that this man did not have the benefit of counsel advising him during his interview. Like the majority of Fijians, he is not legally trained. More, he had only attained primary level education. He made it to Class 8 and then stopped formal schooling thereafter. It was patently unfair to invite a waiver from him in those terms. It is imperative that Police Officers give full effect to constitutional rights and present that in clear, unvarnished, untarnished, plain terms. I rule any admissions made by the Defendant to the Police inadmissible into evidence at trial.
  4. There is the other ground of complaint which is equally important and which is equally dispositive of the question of admissibility here and now. Section 13 (1) (c) of the Constitution guarantees a suspect the unconditional right to communicate with a legal practitioner of his or her own choice in private in the place where he or she is detained; but it also guarantees a suspect the right to be given the services of a legal practitioner under a scheme for legal aid by the Legal Aid Commission if he or she does not have adequate means and where the interests of justice so require.
  5. The Record of Interview shows the following:

“Q9. Under section 13 of the Constitution you have the right to consult a lawyer of your own choice at your own expense or a lawyer under the Legal Aid Commission which is free of charge. Do you wish to exercise your above right?

  1. Yes I want to consult Legal Aid.

2035hrs: Contact made to 9922154 but was not answered.


Q10. Do you agree with me that we have just contacted the Legal Aid Office on 9922154 and the phone was not answered?

  1. Yes

Q11. Do you wish to consult Legal Aid later tomorrow?

  1. Yes.”
  1. That series of questioning was unfair to the Defendant. It is clear from the Record that the Defendant had wanted to consult a Legal Aid lawyer before the questioning began proper. Question 10 and question 11 smacks of a concerted effort to force a waiver of his right to be given the services of a legal practitioner under a scheme of legal aid by the Legal Aid Commission prior to the questioning. It is trite that a constitutional waiver must be voluntary and it must be informed.
  2. What the Defendant ought to have been told was that because he could not consult a Legal Aid lawyer that evening he had the right to wait until one could be made available to him to consult or that alternatively, if he wished, he could simply proceed with his interview without the benefit of that consultation. If he chose to wait, then the Interview ought to have been suspended. If he chose to proceed, then that would have constituted a fully informed waiver of that right.
  3. In respect of the former, I accept that the 48 hour time clock would continue to tick on; and that it may even draw to a close without the Police ever having gotten to an Interview. That is perfectly alright. Far better that the State honour and give effect to a constitutional guarantee then be seen to bend or break it for the sake of self-interested expediency.
  4. The only way for the State to have gotten around this at the voir dire was to prove to me via evidence that he was not a man of means and/or that it was not in the interests of justice that he be allowed to consult a legal aid lawyer that evening or at point during his time in custody prior to production in Court. The State have not satisfied me beyond reasonable doubt that you were not a man of means nor that it was not in the interests of justice for you to be given the opportunity to consult with a Legal Aid lawyer the next day.
  5. The “interests of justice” was considered in a similar context under the now abrogated Constitution of 1997 in respect of the right to counsel for defendants charged with an offence and was interpreted to mean:
  6. I adopt the same questions for an interest of justice consideration here and now, except that I would remove (b) and (d) from the equation in respect of persons arrested and detained pursuant to section 13 (1) (c) of the Constitution. Contextually, the questions I removed applies best to the Defendant charged for an offence and facing trial but has little application to the arrested or detained person prior to being charged.
  7. In my considered view, the seriousness of the offence and the potential sentence are important interests of justice considerations at the pre-charge stage. In circumstances where the Defendant is facing a serious offence and a lengthy sentence if convicted, it will always be in the interests of justice that the person be given the services of a legal practitioner by the Legal Aid Commission in circumstances where he or she cannot afford a private lawyer but he or she wishes to obtain legal advice before or during his or her interview with the Police.
  8. The Defendant in this present case was questioned in respect of an allegation of the aggravated robbery of a taxi driver. I need hardly say more. Aggravated robbery is an indictable offence that carries a maximum sentence of 20 years imprisonment and which often attracts a sentence within the current established tariff band of between 4 – 10 years imprisonment[3]. It is objectively a very serious offence
  9. When obtaining the Defendant’s particulars, the Interviewing Officer recorded “cane cutter” as his Occupation and received an indication from the Defendant that he had only attained Class 8 in terms of formal education. Now, academic attainment is by no means an indicator of intelligence but it is a reliable indicator of employment prospects and wage earning capacity. The Interviewing Officer did not need to engage in guess work. Cane cutting is, all things being equal, seasonal work that is not known for its high income earning capacity in Fiji.
  10. In all the circumstances, there was clear indication that he was not a man of means and that it was in the interests of justice that he be given the services of a legal practitioner by the Legal Aid Commission if that is what he wished prior to his interview or at any point during his arrest or detention.
  11. I rule his admissions inadmissible in light of the unfairness inherent in the Interviewing Officer’s failure to obtain a fully informed waiver of the Defendant’s constitutional right to have the services of a legal practitioner by the Legal Aid Commission in circumstances where:

Result


  1. In the result and for the reasons set above, I rule any and all admissions against interest made by the Defendant to the Police inadmissible in evidence at trial.

---------------------------
Seini K Puamau
Resident Magistrate


DATED at LAUTOKA this day of 2020

[1] Italics added.
[2] State v. Timoci Silatolu, HAC011 of 2011 per Wilson J.
[3] Matagasau v. State – Sentence [2019] FJHC 633; HAC 17.2019 (28 June 2019)

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