IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 194/2010

BETWEEN:

THE STATE

AND:

ISIMELI WAKANIYASI

COUNSEL: Mr. Alvin Singh for the State
 Accused in Person

Date of Hearing: 18-22/02/2013
Date of Ruling: 25/02/2013

VOIR DIRE RULING

01. The accused Isimeli Wakaniyasi is charged for one count of Robbery with Violence on an information by Director of Public Prosecution. The State intends to rely on the Record of Interview of the accused.

02. The accused objects to the admissibility of a caution interview made on 23/10/2009 at Valelevu Police Station, on the basis that it was not voluntarily made but induced by threats and assault. 

03. The test for the admissibility of statement made by an accused to person in authority is whether it was 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.

04. 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.

The Law

05. The principles governing the admissibility of an admission or a confession are well settled. A confession or an admission made by an accused to a person in authority could not be properly given in evidence unless it was shown that it was made voluntarily, that is, not obtained through violence, fear or prejudice, oppression, threats and promises or other inducements (Ibrahim v R {1914} AC 59). Even if such voluntariness is established, the trial court has discretion to exclude a confession or an admission on the ground of unfairness (R v Sang [1980] AC 402). A further ground that an admission or a confession could be excluded is for breaches of constitutional rights.

06. Oppression is anything that undermines or weakens the exercise of free will (R v Prestly [1965] 51 Cr. App.R). The onus of proving voluntariness, fairness and lack of oppression is on the prosecution and they must prove these matters beyond a reasonable doubt. If there has been a breach of any of the accused's constitutional rights, the prosecution must prove beyond a reasonable doubt that the accused was not thereby prejudiced.

The Prosecution case 

07. At the Voir dire inquiry Prosecution called five (13) witnesses in the  following order.

1.	DC 3712/Navneet was the investigating officer in this case. He had gone to the crime scene and made observations. He arrested a suspect in connection with this case. Suspect in this case was arrested in Lautoka. He had seen the accused at Valelevu Police Station but could not recall the date. He said that neither he nor any police officer assaulted, threatened, intimidated, forced or put pressure on the accused. He identified the accused in the court. 

In the cross examination by the accused witness said that he was first kept at Nabua Police Station before being transferred to Valelevu Police Station. 

2.	 Irene Singh gave evidence next. According to her she was the Station Orderly on 15/10/2009 at Lautoka Police Station. Cpl/Druma brought the accused to the station at 1900 hours. Accused was physically produced before her and she noted no injuries on his body. After entering in Station Diary of Lautoka Police Station accused was locked in the cell. She identified the accused in open court. 

She was subjected to cross examination by the accused. 

3.	DC/3830 Apenisa who was on duty along with Irene Singh corroborated the testimony of Irene Singh. He identified the accused in open court.

4.	DC/4189 Farasiko gave evidence next. He was attached to Lautoka Police Station in the year 2009. He had seen the accused locked in the cell until 19/10/2009.

5.	DC/Viliame gave evidence next. He was on duty at Nabua Police Station on 19/10/2009. The accused was brought from Lautoka Police Station by PC Rupeni Koroi and handed over to Nabua Police Station. He did the search and locked the accused in the cell. Before locking particulars in respect of the accused had been entered in the Station Diary.

6.	DC/Namata was called next by the prosecution. He had seen the accused in Nabua Police Station in the month of October 2009.

7.	Cpl/Vinay had seen the accused in Nabua Police Station in good health condition.

8.	According to Cpl/Ofati he took over duties from Cpl/Vinay on 19/10/2009. He had seen the accused in the police cell. No complaint received from the accused.

9.	PC/1097 Gonzales was on duty on 20/10/2009 at Nabua Police Station. He had seen the accused in the police cell. After entering all necessary information in the Station Diary accused was handed over to Sgt/Amani from Valelevu Police Station. His unit in charge officer had authorized the transfer of the accused to Valelevu Police Station.

10.	Sgt/Amani had taken the accused to Valelevu Police Station on 20/10/2009. 

11.	DC/Josevata Vikila gave evidence next. According to him he was present during recording of the caution interview statement of accused. According to him he was present throughout the interview and assisted Lemeki Manalu who recorded the caution interview statement of the accused at Valelevu Police Station. The accused had answered the questions fairly and signed the statement. He identified the signature of 1st accused. He admitted that he was not present as a witnessing officer.

12.	D/Sgt/373 Lemeki who recorded the caution interview statement of the accused gave evidence next. On 23/10/2009 his supervising officer had directed him to interview the accused under caution. The interview was conducted in Crime Branch, Valelevu Police Station. All rights were given to the accused. The interview was recorded in English language. Neither he nor any police officer assaulted, threatened, intimidated, forced or put pressure on the accused. He identified the accused in open court. After recording of the interview the original caution interview statement of the accused was sent to Valelevu Police Station exhibit room for safe keeping. The prosecution marked a photo copy the Caution Interview of the accused as Exhibit-01. He identified the signature of the accused. No witnessing officer was present at the time of the interview. 

In the cross examination by the accused witness said that he handed over the original Caution Interview of the accused to exhibit room but it had gone missing. Witness admitted that there was no witnessing officer present. Witness admitted that the accused's name was elicited by a Fijian boy.

13.	Alan Nair gave evidence next. He confirmed that Sgt/Lemeki had recorded Caution Interview of the accused on 23/10/2009. After recording original Caution Interview statement it was sent to exhibit room but had gone missing. According to him he had taken photo two copies of same for the purpose of preparing dockets. He identified the copy of the Caution Interview Statement marked as P1.

In the cross examination witness said that original Caution Interview Statement was not kept under his custody. 

08. After calling 13 witnesses and marking Exhibit-01 prosecution closed their case.

09. After closing the prosecution case defence was called and explained the rights to the accused. Accused opted to remain silent. 

10. The original caution interview statement of the accused was not produced before this court. Sgt/Lemeki who recorded the caution interview statement said that original was kept in the exhibit room of the Valelevu Police Station but it had gone missing. This was confirmed by witness Alan Nair too.

DC/Josevata Vikila was present during the recording of the interview of the accused. He was present to help the recording officer.

11. In a Voir dire inquiry production of Original Caution Interview of the accused is very important. Non production of the same will definitely create a serious doubt. In this case prosecution failed to produce Original Caution Interview Statement of the accused. Further another police officer was present during recording of the interview of the accused. His presence further aggravate the doubt created in this case. 

12. The evidence of the police witnesses for the prosecution, as shown above, was unsatisfactory, tainted with contradictions and uncertainty.

13. I, therefore, rule out the admissibility of the alleged caution interview statement of the accused marked as Exhibit- 01 on the ground of involuntariness and unfairness. Its admission in evidence will affect the fairness of the proceedings. Accordingly, I reject the caution interview statement of the accused as being irrelevant.

P.Kumararatnam
JUDGE

At Suva
25/02/2013