Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Natakuru - ruling on Trial Within A Trial [2005] FJHC 475; HAC0004X.2005S (7 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC0004 of 2005S

STATE

v.

JOSUA NATAKURU

Hearing: 5th October 2005
Ruling: 7th October 2005

Counsel: Mr. D. Prasad with Ms S. Puamau for State
Accused in Person

RULING ON TRIAL WITHIN A TRIAL

The Accused, who is unrepresented, objects to the admissibility of his caution and charge statement on the ground that they were obtained as a result of threats and oppression. A trial within a trial was held to determine admissibility of these statements.

Statements made to the police by suspects must be voluntary, and not obtained by oppression or breaches of Constitutional rights. The burden of proving voluntariness, the absence of oppression, and respect for the Accused’s rights under the Constitution, rests on the prosecution. To prove voluntariness and lack of oppression the prosecution must prove beyond reasonable doubt that the interview was obtained fairly and not as a result of threats, inducements, assault or circumstances that sapped at the Accused’s free will. Finally, even where the interview was given voluntarily and without oppression, the court has a residual discretion to exclude any evidence which was obtained unfairly and where the probative value of the statement is outweighed by its prejudicial effect.

The prosecution called four witnesses in the trial within a trial. The first was Corporal Abdul Khan who was the interviewing officer. He said that on the 8^th of June 2001, he saw the Accused at the Central Police Station Crime Office. He asked the Accused to have a meal and then took him into the Crime Officer’s Room for the interview. The witnessing officer was Corporal Mohammed Shafique. The interview commenced at 7pm in the Crime Officer’s room. It concluded at 10.30pm. In it the Accused admitted approaching the complainant as she sat outside her house, and asking her to go with him to a vacant house in the USP Complex. He admitted having sexual intercourse with her, but said that she consented. However he also said that when she struggled as he took her clothes off, he punched her. Later in the interview he said he did not punch her.

He was charged by Corporal Eremasi at 10.35pm. The charge concluded at 10.45pm. In it the Accused said:

“I wish to say that I raped [the complainant] on the above day and I am sorry for what I have done.”

He was then detained in a cell until he was produced in court on the 11^th of June 2001.

In his cross-examination of the witnesses the Accused said that on being brought to the Central Police Station, he was first taken to a room above the telephone exchange. There, he was verbally interviewed by Corporal Khan who accused him of raping the complainant. When the Accused denied the allegations, three Fijian police offices entered the room and assaulted him. When he was unable to tolerate the assault, the Accused agreed to make a statement. He was then taken to the Crime Office. During the interview, he did not give the answers which are recorded but the answers were framed by Corporal Khan who took them from the complainant’s evidence. Indeed Corporal Shafique and another Indo-Fijian police officer helped Corporal Khan to fabricate the answers. The Accused was then told to sign. He did sign out of fear but deliberately used a signature which he did not usually use to later prove to the court that he only signed out of duress.

In his cross-examination of Corporal Eremasi, he suggested that in the middle of the interview, Corporal Eremasi interviewed him for some other offence and that he voluntarily confessed to that other offence.

The police witnesses denied the allegations of assault, pressure and fabrication. They said that the interview had been properly conducted, that the Accused had given his statement voluntarily, that he read over the record and signed it on all the pages.

The Accused gave sworn evidence in relation to all the allegations made during cross-examination. Additionally, he said that Corporal had fabricated the charge statement and that the Accused had begged him not to charge the Accused for an offence he had not committed. The Accused also said in cross-examination that he did tell the Magistrate about the pressure and the assault, when he first appeared in court but that she may not have written it down.

The record of the 11^th of June 2001 is indeed silent on any complaint against the police. Further, although the Accused says that his confession was fabricated by the police, I note that it is largely exculpatory. In his interview he says that the complainant consented to sexual intercourse although he agreed that he had persuaded her to go with him by telling lies. He also in one place, admitted the punch. I see no logical reason why the police should fabricate an interview which is largely exculpatory.

As for the evidence of assault, pressure, threats and abuse, I accept the evidence of the police witnesses that the Accused gave his statement voluntarily and that he signed the caution and charge statements voluntarily.

I am satisfied beyond reasonable doubt that both statements were given voluntarily and not oppression, unfairness or breaches of Constitutional rights. They may be tendered in evidence.

Nazhat Shameem
JUDGE

At Suva
7^th October 2005