IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 323 of 2012

BEFORE : HON. MR. JUSTICE PAUL K. MADIGAN

BETWEEN:

STATE

AND:

PHANAT LAOJINDAMANEE & OTHERS

Counsel : Ms S. Puamau with Mr R Prakash for State
: Mr. Vakaloloma for the accused 

Dates of hearing : 19 and 20 November 2012
Date of Ruling : 20 November 2012

RULING

1.	The State seeks to adduce into evidence the record of a cautioned interview with the first accused made at C.I.D. Headquarters (Human Trafficking Unit) on the 15th September 2012. The accused objects to the admissibility of the record of this interview on the grounds of first, threats to him by Immigration Officers, when he was first arrested, secondly of "inhumane treatment" when in the custody of the Police and lastly unfairness in not having been interviewed in his native language (Thai) but in a second language (Cantonese).

2.	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.

3.	In evidence to prove the case for admissibility the State called two witnesses. The witnessing officer to the interview told the Court that the interviewing officer was out of Fiji attending a conference in Vietnam. He (PW1) was present throughout the interview with the accused together with a Chinese lady who was interpreting everything said into Cantonese. PW1 said that the accused appeared to have no trouble in understanding the proceedings that were being translated to him by the lady. He said that the "atmosphere was very friendly", the accused did not hesitate over the answers that he gave, nor did he make any complaint about the interview. He identified the written record of interview (Exh. VDP1) and showed where it had been signed by the accused. The accused's lawyer had come in and out of the room during the interview and when the interview was finished, the lawyer read it over and disputed the answers given by his client to two particulars questions. PW1 insisted that the answers shown on the record were the answers given by the accused.

4.	The second witness called by the State was the lady interpreter Madame Rosali Bahadur. She told the Court that she spoke to the accused and was able to ascertain that he spoke and understood Cantonese. She said that he spoke the dialect well but told him that if he didn't understand then she would explain the questions. In any event she explained each question to the accused at least twice in order that there would be no misunderstanding. She said he had no difficulty in expressing himself in the dialect. As to the two questions that were in dispute after the lawyer read them, she said that she discussed them with the lawyer and she confirmed that the answers as written on the exhibit were indeed the answers proffered by the accused. She said he "absolutely understood the questions and answers". 

5.	The accused gave evidence on this voir dire issue in the Thai language. He said that he had been taken from his hotel by Immigration Officers, kept for two days by them and then handed over to the Police on the 15th September. He said that during the interview the officer was speaking in English, a language that he doesn't understand. It was being interpreted to him in the Cantonese dialect. He understands Cantonese but only a little - "not that much. I don't really fully understand". He said that he signed the record of interview because the interviewing officer told him that it was time to go to Court and he had to sign. He failed to say how he understood the interviewing officer's directions, despite being asked several times by prosecuting counsel and the Court. 

Discussion

6.	Despite the grounds of objection filed, there was no evidence before me of threats by the Immigration Officers or of "inhumane treatment" at the hands of the Police. I accepted the evidence of the two prosecution witnesses that the interview was conducted in a very friendly atmosphere and there was nothing placed before me that would suggest that the answers to the questions in the interview were involuntarily obtained. 

7.	The only outstanding issue therefore is whether the interview should be excluded on the grounds of unfairness. While before embarking on the substantive trial, it must not be for me to decide issues of the accused's credibility. I do however accept the prosecution evidence that the accused willingly conducted the interview in the Cantonese dialect and that he appeared to understand very well what was being asked of him and he gave his answers which are relevant and coherent without any hesitation. It is noteworthy that the only answers called into question now and disputed by the accused and his counsel are answers that are inculpatory. 

8.	I do not find that the interview, being fully understood by the accused, was unfair and there being no evidence of impropriety in its formation, the interview is admissible in evidence in the trial proper.

9.	Questions of truth and accuracy of answers given will ultimately be questions of fact for the assessors to deliberate on. 

Paul K. Madigan
JUDGE

At Suva
20 November 2012