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State v Vibote [2012] FJHC 887; HAC081.2011 (13 February 2012)

IN THE HIGH COURT OF FIJI AT LAUTOKA
[CRIMINAL JURISDICTION]

Criminal Case No: HAC 081 of 2011

BETWEEN :

THE STATE

AND :

LAISENIA KATO VIBOTE

BEFORE : Priyantha Nāwāna J.

COUNSEL

Prosecution : Ms L Vateitei, State Counsel

Accused-Person : Mr ... Maopa

Date of Inquiry : 13 February 2012

RULING ON VOIRDIRE

1. The accused abovenamed stands indicted for the offence of rape punishable under Section 207 (1) (2) (b) of the Crimes Decree No 44 of 2009. The offence is alleged to have been committed on 09 March 2011.
   
2. The prosecution, in support of its case, relied on the contents of the statement made by the accused under caution in the course of an interview by police. The statement, which was confessional in nature, was objected to by the accused on the premise that it was obtained after being influenced by means of assault by police. As such, it was contended on behalf of the accused, that the confession was involuntary; hence, irrelevant.
   
3. The accused, in addition, sought to challenge the cautioned-interview statement on following grounds. They were:
   
   • (i) The accused was not allowed to see any of his relatives, a solicitor, a church minister since he was taken into custody;
     
   • (ii) The accused was not allowed to visit the doctor for medical examination whilst in the police custody;
     
   • (iii) The interviewing officer breached the judges' rules in that the interview was recorded in the English language but the questions and answers were given in the Fijian language. Hence, the Records of Interview are the translation of the exact words spoken; and,
     
   • (iv) That the accused was in police custody for 4 days in violation of the Criminal Procedure Decree 2009.
     
4. The Privy Council, in the case of Wong Kam-Ming v The Queen (1980) A. C. 247, P. C., observed that:
   

[t]he basic control over admissibility of statements are found in the evidential rule that an admission must be voluntary i.e. not obtained through violence, fear or prejudice, oppression, threats and promises or other improper inducements. See decision of Lord Sumner in Ibrahim v R [1914] UKPC 16; (1914-15) AER 874 at 877. It is to the evidence that the court must turn for an answer to the voluntariness of the confessions.

7. In the oft cited case of Shiu Charan v R (FCA Crim. App. 46/1983), it was held that:

[F]irst, 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 use of force, threats or 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 (1914) A.C. 599; DPP v Pin 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, ... falling short of overbearing the will, by trickery or by unfair treatment Regina v Sang [1979] UKHL 3; (1980) AC 402.

8. At the voir dire before me, the prosecution called six police officers in support of its position that the confession of the accused person was, in fact, voluntary. The accused did not offer evidence; nor, did he call any witnesses in support of the grounds of challenge.
   
9. Evidence revealed that the accused was arrested around 1400 hrs. on 09 March 2011 in the course of a police investigation into a complaint of rape by a woman XX. He was arrested by police on the same day at his home at Voivoi in Legalega, which was about 2-300 M away from the house of the XX where the offence was alleged to have occurred. The arrest was carried-out by officers of Namaka Police Station.
   
10. The accused was then taken to Sabeto Police Station, where his statement under caution was recorded on 10 March 2011. The accused was, thereafter, charged. The Charge Statement and the cautioned-interview statements were marked as VD-1 and VD-2 respectively.
    
11. The accused, in the course of the testimonies of police officers, continuously took up the position that he was assaulted from the point of arrest up until his statements were recorded.
    
12. I have carefully considered the evidence of the police officers on behalf of the prosecution and their demeanour and deportment.
    
13. There is no evidence in this case upon which I can come to the finding that the admissions in the cautioned-interview statement were obtained through violence, oppression, threats, promises or such other improper inducements. I am, in the circumstances, inclined to take the view that the statement was not procured by assault and/or by threat of such assault or by means of oppression.
    
14. As regards the complaint on breach of Judges' Rules, I find no material so as to convince me that there had been a breach to constitute unfairness. In that regard, I am guided by the authority in State v Nalave [2011] FJHC 692 on the effect of any material and intentional breach of Judges' Rules. Evidence did not reveal such breach
    
15. The accused, therefore, did not appear to have been influenced to make the statement involuntarily. I reach the same conclusion as regards the charge statement for the same reasons. On the contrary, evidence presented before court leads me to the conclusion beyond reasonable doubt that admissions made in the statements were, in fact, voluntary. I do not see that admission of the statement would have an adverse effect on the fairness of the proceedings or that it would fail to secure a fair trial for the accused-person either.
    
16. I, accordingly, allow the admission of the two statements under caution as relevant and admissible in evidence, if the prosecution relies on them at the trial.
    

Priyantha Nāwāna
Judge
High Court
Lautoka
14 February 2012