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State v Mani - Voire Dire Ruling [2012] FJHC 1049; HAC098.2010 (18 April 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 098/2010

BETWEEN:

THE STATE

AND:

EPARAMA MANI

BEFORE: Hon. Justice Mr Prabaharan Kumararatnam
COUNSEL: Mr L. Fotofili and Mr.Vosawale for the State
Accused in Person

Date of Hearing: 10/04/2012
Date of Ruling: 18/04/2012

VOIR DIRE RULING

01. The accused objects to the admissibility of the caution interview made on the 04/05/2010 at Samabula Police Station, on the basis that it was not voluntarily made but induced by threats and assault. The oral grounds on which he initially challenged the admissibility are:

1. That he was assaulted by police officers who arrested him.
2. That he was assaulted by police officers during the interview.
3. That his statement was not counter signed.
4. That the information written on the statement is not true.
5. That the Doctor who examined him was bribed by the police officers.
   

02. The test for the admissibility of statements made by an accused to person in authority is whether they were voluntary, obtained without oppression or unfairness or in breach of any Constitutional Rights now Common Law rights. The burden proving voluntariness, fairness, lack of oppression and observance of common law rights rests on the prosecution and all matters must be proved beyond reasonable doubt.

03. Evidence of threats of violence, if accepted by the court, is sufficient to raise a reasonable doubt as to voluntariness. If what the accused says is true, it would create an oppressive climate of fear.

04. At the Voir dire inquiry Prosecution called five witnesses.

1. DC/3657 Leone Vurekeni was the officer who arrested the accused on 03/05/2010. According to him he has completed 06 years in police service. During his service he had done more than 50 arrests. On information accused was arrested at Wainadoi Police Post between 8pm-12am. After his arrest he was informed of the charge in Fijian language and escorted to Samabula Police Station. He was seated in front seat of a white coloured vehicle. No civilian travelled in the vehicle. He was hand cuffed and taken to Samabula Police Station. Accused was calm at the time of the arrest. The witness identified the accused in open court.

In the cross examination witness said that he was the arresting officer and arrested the accused between 8.00pm – 12 am. Accused was taken to Samabula Police Station within 30 minutes of his arrest. He denied that he assaulted the accused. Witness further denied that he sprayed capsicum spray on accused's face.

In the re-examination witness emphasized that the suspect was taken to Samabula Police Station immediately after the arrest.

2. DC/3476 Sukulu Colati was the officer who recorded the caution interview of the accused. According to him he completed 10 years in police service. On 04/05/2010 he has recorded the caution interview of the accused at CID branch interviewing room in Samabula Police Station. It was commenced on 04/05/2010 and concluded on 05/05/2010. Only he and accused were present at that time. Interview was recorded in English language as per the request of the accused. He had explained all rights of the accused. Caution interview was recorded in question and answer form. During the interview accused was calm and voluntarily answered the questions put to him. The hand written original caution interview statement was marked as 1A and the typed one marked as 1B. He identified the accused in open court.

In the cross examination he denied that he assaulted the accused in the police. He said that he was not in the police station when accused brought to Samabula Police Station. Witness denied that he assaulted the accused at Nabua Police Station. According to him when he went to Samabula Police Station to record caution interview statement, he was told that accused was in Nabua Police Station. Witness denied that he assaulted and threatened the accused to admit the caution interview statement. He further said that never threatened the accused not to call anybody to witness the recording of his caution interview.

He was not re-examined by the state counsel.

3. D/CPL Clint Kelemedi was the charging officer gave evidence next. According to him he charged the accused on 05/05/2010 at Crime Office, Samabula Police Station. Before the charge he had explained all the rights of the accused. The charge was taken in English language. He identified the accused in open court.

He was not cross examined by the accused.

4. DC/Sgt 2195 Samuela gave evidence next. He is attached to Samabula Police Station and has 21 years experience in Fiji police. He has taken the accused to a doctor in Samabula Heath Centre on 06/05/2010.He had prepared the medical request form and given it to a doctor in Samabula Heath Centre. He identified his signature and the document. He identified the accused in open court.

In the cross examination witness said that he was not present during his interview and only assisted investigations. He denied that he assaulted the accused at Samabula Police Station.

5. Finally prosecution called Dr. Elvira Ongbit to give evidence. She had given evidence on behalf of Dr. Usha Pawar who had seen the accused at Samabula Health Centre on 06/05/2010. At present she had gone abroad. According to witness she is presently attached to Makoi Health Centre. In the year 2010 she was attached to Samabula Health Centre. Dr.Usha Pawar also worked in Samabula Health Centre in 2010. Hence she recognized hand writings and signature of Dr.Usha Pawar. Witness has been in active medical service since 1983 and had seen over 50 assault cases. According to medical report at number 13(b) ii Dr. Usha Pawar had written that no bruises seen on the body. Slight swelling below left eye noted. According to witness slight swelling could be possible due to blunt force. According to the diagnosis no specific bruising seen on the body of the accused. She further said that this type of injury will take 7-10 days to disappear. The medical report of the accused is marked as Exhibit 02.

In the cross examination witness said that the medical report was prepared by Dr.Usha Pawar. She was not re-examined by the prosecution.

Prosecution then closed their case.

05. Defence was called and explained the rights of the accused. Accused elected to give evidence from witness box and called witnesses.

1. Accused giving evidence said that he was assaulted by the police officers who arrested and charged him to this case. When he was taken to hospital one Indian police officer had bribed the doctor not take him for X-ray. During the interview he was assaulted and forced him to accept the charge. Though he requested no one has counter singed his interview statement. According to him he had not given his interview statement on his free will but was fabricated by the police. Police officers not allowed any one of his relative to be present at the police station.
   

In the cross examination accused said that he was forced to sign his interview statement. Since the police officers forced him he correctly mentioned his address and other personal details. According to him he was punched, kicked, put in the dark room and sprayed Capsicum spray in to his eyes. He was taken to place of incident and forced him to admit the crime. After the assault he had bleeding from his nose.

2. Next Salesi Balekivuya gave evidence. According to him he had seen accused being assaulted by police officers. He had named three police officers name. They are, Amani, Jone and Samu.
   

In the cross examination witness said that he knew the accused from childhood. He said that he can't recall the time when accused was taken out from the cell on 06/05/2010.According to him police officers had punched, kicked and slapped the accused. Accused had fallen on the ground after he was kicked by the police officers.

3. Next Osea Vakacirivalu gave evidence on behalf of the accused. He had seen the accused while he was taken to court. Both had been in the police cell block, Suva. He had seen accused having swollen black eye and he was limping. He could not recall the date.
   

In the cross examination witness said that he saw the accused first time in the police cell.

4. Next Sunia Roraqio gave evidence. He had seen the accused in Korovou Prison with injuries. He had seen accused's one of the eyes was swollen and he was limping.

In the cross examination witness said that he saw accused with injuries at Korovou Prison.

5. Finally Arieta Dranivesi gave evidence for the accused. According to her she had gone to Samabula Police Station on 4th and 5th May 2010 as she was called by the police officers. When she saw the accused in the police cell, had seen bruises on his face, on his hands and the chest.
   

In the cross examination she said that she came to know that the accused was injured only at the police station. Apart from bruises on accused's hands she had seen bruises on the ribs of the accused. Finally she admitted that she saw injury only on the face of the accused.

Analysis

The police officers giving evidence said that the accused was never assaulted or forced to make a statement.

The accused in his evidence said that he was beaten and forced to sign his caution interview statement. Though he was injured he never complained to anybody even to learned magistrate before whom he was produced. Though a serious allegation made against the doctor before whom he was produced not a single suggestion made to the doctor who gave evidence on behalf of Doctor Usha Pawar. According to medical report except a blunt injury (old) below left eye, no specific bruises seen on accused's body. But the witnesses called by the accused told court that accused had black eye and was limping. Further witness Arieta Dranivesi said that she had seen bruises on hands, face and on chest. But in the evidence of the accused nothing mentioned about his injuries. According to the accused nobody was allowed to visit him while he was in the police station. But witness Arieta Dranivesi said that she visited the accused in the police and saw the injuries.

Having heard the evidence by prosecution and the defence, I accept the evidence of the police officers that the accused was not assaulted, threatened and ill treated while his caution interview was recorded.

I am satisfied that the prosecution has proved beyond reasonable doubt that the accused made the Caution Interview Statement voluntary and that he was not assaulted, threatened, ill-treated or oppressed. I have considered the demeanour of all the witnesses who testified before me.

I find the Caution Interview Statement to be admissible in evidence.

P.Kumararatnam
JUDGE

At Suva
18/04/2012