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Fiji Independent Commission Against Corruption v Toga [2012] FJHC 1098; HAC02.2010 (4 May 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 02 OF 2010

BETWEEN:

FIJI INDEPENDENT COMMISSION AGAINST
CORRUPTION (FICAC)

AND:

JOSATEKI TOGA

Counsel : Ms E. Leweni & Mr. T. Waqabaca for FICAC
Mr Vuataki for the Accused

Date of Ruling : 24th April 2012

VOIR DIRE RULING

1. The Accused above named was charged by the Deputy Commissioner of Fiji Independent Commission Against Corruption for 2 counts of Bribery punishable under Section 4(2) Prevention of Bribery Promulgation and one count of Abuse of Office punishable under Section 111 of the Penal Code.
   
2. The Prosecutor informed the Court that she will be producing the statement of the Accused Person made during the course of caution interview. The Accused objected to same on the grounds that it was obtained under oppression.
   
3. The Prosecution called 2 witnesses. The Accused opted to give evidence on his behalf at the inquiry.
   
4. The 1st witness called in the Voir Dire inquiry was Mr Jone Cama. He is a senior Commissioned Officer attached to FICAC. He said that he was involved in this investigation. He submitted to Court that he recorded the statement of the Accused at the caution interview. The record of interview was marked as VD-1 at the inquiry. He told Court that the Accused was explained of his rights and he believe the Accused understood the same.
   
5. It is evidence before the Court that the Accused was arrested on the 23/07/2009 and produced before the Resident Magistrate of Nadi and bailed out on the same day, then he was re-arrested and produced on the following day before a Judge of the High Court, Suva.
   
6. Prosecution witness Mr Jone Cama told Court that the Accused told them that he was working for two shifts at the Immigration Department just before the arrest. Further, the Accused had told him that he was having headache and took panadol (paracetomol) while the interview was in progress.
   
7. Mr Filimone Daveta was the next witness called by the Prosecution. He said he was the witnessing officer at the interview. He submitted to Court that he is an experienced person in this field and presently holding the position of Chief Commissioned Officer at FICAC. He submitted to Court that the Accused made the statement voluntarily. At the cross examination, he admitted even though the Accused complained of having headache, he didn't stop the interview.
   
8. The Accused Josateki Toga gave evidence on his behalf and said he was working from the previous day without a break and he was tired when the interview was conducted. He submitted to the Court that the statement was obtained under oppression.
   
9. Considering the nature of the evidence before the Court, it is observed that the investigator had asked all important and pertinent questions from the Accused on the 1st day evening itself and the following day he had asked only formal questions before closing the interview.
   

Law

10. It should be noted that the Constitution of the Republic of Fiji was abrogated on the 11th April 2009 therefore the provisions of the Constitution was not in force at the time of arrest.
    
11. On 1 February 2010, the Criminal Procedure Decree came into force. The Crimes Decree, 2009 also came into force on that date. These Decrees along with the Sentencing and Penalties Decree 2009 (the first of its kind for Fiji) effectively legislates criminal law and procedure in this nation.
    
12. Since there is Casus Omisus, it is fulfilled by Article 9 of the United Nations Covenant on Civil and Political Rights. Applicability of Article 9 was discussed by me in many cases previously.
    
13. Article 9 of the UNCCPR provides as follows:
    

Article 9

1. Everyone had the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
   
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charge against him.
   

100. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appeal for trial, at any other stage of the judicial proceedings, and should occasion arise, for execution of the judgment."
     

14. In Rokonabete –v- State[206] FCA 40; AAU0048.2005 (14 July 2006) the Court of Appeal per Ward P. Baker and Henry JJA held:
    

"[20] Under the common law, a court faced with a challenge to the admissibility of a confession was under a duty to ascertain that issue separately from the remainder of the prosecution evidence and the court had a discretion to decide, in the particular circumstances of the case, whether a trial within a trial was necessary. However, unless the defence sought not to have one, it became an almost invariable practice to do so. Since the passing of the Police and Criminal Evidence Act, the English Magistrates Court have been obliged to hold a trial within a trial whenever where is a challenge to the admissibility of the statement. The Australian and New Zealand Courts have followed a similar practice for many years."

15. In State –v- Singh – Ruling (2009) FJHC 29 HAC 79 OF 2008 (26 January 2009), the High Court of Fiji determined the admissibility of an oral admission made by the Accused to the Police during arrest Goundar J said:
    

[3] the governing principles to determine the admissibility of a confession were summarized by Shameem J in State v Vasuitoga and Qurai, Criminal Case No HAC 008 /06 s (12 January 2007). Her Ladyship said:

"When a suspect gives an inculpatory statement to a person in authority, it must be shown by the prosecution to have been obtained voluntarily and without unfairness or oppression. Further the prosecution must prove that the confession was obtained in accordance with the Constitution and if there were breaches of the rights of suspects under the Constitution, that the suspect was not thereby prejudiced.

The test for voluntariness is whether the suspect gave his statement freely, without oppression or hope of advantage or fear of disadvantage. The purpose of the rule of admissibility and of the suspects' right under the Constitution is to remove the inherent imbalance of power which exists when a suspect is questions in custody; whilst preserving the right of the police to questions anyone in the course of proper investigations and in the public interest. In the determining of issues relevant to the admissibility of confessions, these are the principles to be considered and balanced."

16. The word oppress defined at Oxford Advanced Learners Dictionary 7th Edition as follows:
    

"Oppression – to treat somebody in a cruel and unfair way, especially by not giving them the same freedom, rights etc, as other people."

17. Cambridge advanced Learners Dictionary explains as follows:
    

"Oppression – when people are governed in an unfair and cruel way and prevented them from having opportunities and freedom"

18. On what may constitute "oppression" sufficient to tender a statement involuntary, the English House of Lords, in Priestly v R (1965) 51 Cr App R 1, described oppression as "something which tend to sap, and has sapped, that free will which must exists before a confession is voluntary" (per Sachs LJ). Whether or not there is oppression in an individual case depends upon many elements, including the length of time intervening between periods of questioning, whether the accused person had been given proper refreshments or not and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid or an old man, or somebody inexperienced in the ways of this world may turn out not to be oppressive when one finds that the accused person is of tough character and an experienced man of the world: Archibold 39th Edition paragraph 1380.(emphasis added)
    
19. Lord McDermott in Priestly (supra)observed that: "oppressive questioning is questioning which by its nature, duration or other attendant circumstances (including the fact of custody excites hopes of release) or fears, or so affects the mind of the subject that his will crumbles and he will speak when otherwise he would have stayed silent" (emphasis added)
    
20. In this case the Accused clearly indicated to the investigators that he was working for long hours and he was tired. Further, he complained of headache but the FICAC officials had not considered to give him a rest before they record the statement.
    
21. Considering all authorities and the circumstances in which the Accused made the statement, I am of the view that the Accused was not mentally free to make a confessionary statement. Circumstances of the statement made were oppressive. Therefore, it will not be safe to allow the statement to be led in the trial.
    
22. For the reasons stated above the confessional statement made to the special investigators of Fiji Independence Commission Against Corruption is not allowed to be produced at the trial against the Accused person, Josateki Toga.
    

S. Thurairaja
Judge

At Lautoka
4th May 2012

Solicitors : Fiji Independent Commission Against Corruption for State
Vuataki Law for the Accused