IN THE HIGH COURT OF FIJI AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 321 of 2013

STATE

V

1.	TUPOU BOKADI
2.	SEMISI RABAKOKO
3.	LEDUA GUDRU

Counsel : Mr. T. Qalinauci for State
Ms. R. Drau for 1st Accused
Mr. J. Savou with Ms. N. Mishra for 2nd Accused
Mr. Romanu for 3rd Accused

Dates of Hearing : 24 – 29 September 2015
Date of Ruling : 01 October 2015

VOIR DIRE RULING

1.	The above named accused persons are charged with another for one count of aggravated robbery contrary to section 311(1)(a) of the Crimes Decree 2009 and one count of theft contrary to section 291 of the Crimes Decree 2009 as per the amended Information filed by the Director of Public Prosecutions on 23rd September 2015.

2.	The prosecution seeks to adduce the caution interview and charge statement of the 1st accused [VDPE 1 & MFI 1], the caution interview of the 2nd accused [MFI 2] and the caution interview and the charge statement of the 3rd accused [MFI 3 & MFI 4]as evidence in the trial.

3.	The grounds of objections filed on behalf of the 1st accused on 21st April 2015 were;

a)	The Police Maciu Vakaruru, Sukulu Colati and Tora Isireli before and during the interview on or about 04th September 2013 slapped him on the face on several times and threatened that if do not confess he would be assaulted with a baton and taken to the camp.
b)	Later on the same day, the same officers jabbed his body threatening that if he did not confess he would be taken again to the strike back unit.
c)	On 7th September 2013 assaulted with batons by the knees, back and arms and punched by four police officers of the strike back unit.
d)	Same officers threw jabs at him whereby he tried to protect himself and he was also kicked.

4.	The grounds of objection filed on behalf the 2nd accused on 16th February 2015 were;

a)	Not caution by the arresting officers of the strike back unit when he was arrested on 06th September 2013
b)	Was assaulted by the arresting officers of the strike back unit on 06th September 2013 when he tried to enquire about his arrest
c)	Was assaulted on 06th September 2013 at the Nabua Police Station in the presence of Sukulu Colati after he denied the allegation
d)	Assaulted during the time he was transported from Nabua Police Station to Nasinu Police Station on 06th September 2013
e)	Assaulted on the morning of 07th September 2013 at the Nabua Police Station
f)	Assaulted by the interviewing officer Sukulu Colati
g)	As a result of the assaults his free will was sapped to the point that he signed a typed caution interview and charge statement without reading them.

5.	No grounds of objection were filed on behalf of the 3rd accused. The trial against the 3rd accused is held in his absence but he is represented by Counsel.

6.	The prosecution also says that the originals of the aforementioned documents are lost and requests that the admissibility of the photocopies of the said documents be decided as a preliminary point of law.

7.	Therefore, this ruling entails the admissibility of the aforementioned confessions and also the admissibility of secondary evidence pertaining to those confessions.

Admissibility of a confession

8.	In Ganga Ram and Shiu Charan v. R (Criminal appeal 46 of 1983 delivered on 13th July 1984), the Fiji Court of Appeal outlined the two grounds for the exclusion of a confession;

"It will be remembered that there are two matters each of which requires consideration in this area. First it must be established affirmatively by the Crown (sic) beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as the 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] AC 599; DPP v. Ping Lin [1976] AC 574.

Secondly, even if such voluntariness is established there is also a need to consider whether the more general ground of unfairness exists in the way in which police behaved, perhaps by breach of the Judges' rules falling short of overbearing will, by trickery or by unfair treatment. R v. Sang [1980] AC 402, 436 at C-E. This is a matter of overriding discretion and one cannot specifically categorise the matters which might be taken into account". [Emphasis added]

9.	In the case of Guston Frederick Kean v State ([2013] FJCA 117 decided on 13th November 2013), Calanchini P said thus;

"[25] The Appellant claimed that whilst at the Samabula Police Station he was denied meals, proper sleeping facility, toilet facilities and drinking water. He also claimed to have been assaulted. However the Appellant is not really challenging the admissibility of the caution interview on the basis of whether it was made voluntarily, because at paragraph 31.0 on page 7 of his submissions, the following appears:

"It is submitted that although I was assaulted, threatened and subjected to oppressive treatment as above summarised, I nevertheless did not make those statements and I did not sign those photocopy interviews. Police fabricated those statements and fraud (perhaps should read forged) these signatures."

[26] It is apparent that the issue raised by this paragraph is not so much whether the caution statement was made voluntarily but rather the Appellant is claiming that he never made the caution interview admissions and that his signature had been forged. 
…….
[27] Although on the one hand the issue whether the caution interview admissions were made voluntarily was a question of law for the judge at the voir dire stage whilst the authenticity of the interview was a question of fact for the assessors to be decided after all the evidence has been heard, …"

10.	Further in the case of Ro Olivini Radininausori v State (AAU 105 of 2007 decided on 26th November 2010) the court held;

"Obviously, not every objection taken to an interview or statement made under caution is the issue of voluntariness. There could be claims of fabrication, errors in transcription, denial of rights to a suspect etc. In such situations such as these it is not necessary for a voir dire to be held to determine the admissibility of the document; the issue becomes a matter for the jury (assessors)"

11.	It appears that the Court of Appeal had made it clear that the role of a Judge when it comes to a voir dire in respect of the admissibility of a confession is to rule on whether that particular confession was made voluntarily and even if it is found to be made voluntarily, whether the manner the confession was obtained is unfair.

12.	However, if an accused takes up the position that he never confessed but merely signed a typed document with questions and answers or his signature is forged on a document which includes a statement he never made, then, a question with regard to voluntariness cannot arise in respect of such statement. How can the court rule on whether an accused made a statement voluntarily if that accused never made one?

13.	Therefore, in the light of the aforementioned judgments, a ground raised on the basis that the accused never made the confession in question cannot be determined in a voir dire and it is a question of fact which should be left for the assessors to decide first.

Admissibility of secondary evidence

14.	The principles governing the admissibility of secondary evidence were comprehensively discussed in the well-known case of R v Vincent Lobendahn (18 FLR. 1). Accordingly, in order to accept secondary evidence;

a.	It must be established that the original itself, in fact, formerly existed.

b.	That such original itself would have been legally admissible in evidence.

c.	There must be clear and reliable evidence to establish that the copy which the party wishes to tender as secondary evidence is a true and faithful reproduction in all respects of the original document.

d.	The original must be proved to have been lost or destroyed and the Court must have evidence before it from which it can be satisfied that the original is no longer in existence or that it could not, by any reasonable amount of effort be found.

e.	If a document is said to have been lost or possibly destroyed it must be established that "due and diligent search" has been made for the missing document before a copy can be tendered.

f.	It must be shown, if necessary by a proper chain of evidence, what happened to the original from the time the original was made out or first known to be in existence until it was lost. Similarly, it must be established when, where and how the copy was made and not it came into the hands of the person seeking to tender it in evidence.

g.	All of these matters must be established to the satisfaction of the trial Court "beyond reasonable doubt."

What amounts to "due and diligent search" is a matter entirely for the determination of the trial Court and must be to such degree as the Court considers reasonable in the circumstances of the particular case.

The evidence

15.	For the purpose of this voir dire, the prosecution led evidence of;

a)	DC Viliame Vereivalu who arrested the 2nd accused;
b)	Police Officer Asaeli Tuivaka who assisted Cpl. Viliame to arrest the 2nd Accused;
c)	DCpl. 3335 Ilisoni who was the arresting officer of the 3rd Accused;
d)	Mr. Shivendra Nath who said he never received the lost originals in this case from D/C Maciu Vakaruru;
e)	DC Maciu Vakaruru who said he interviewed the 1st accused, who said that the lost originals were given by him to Mr. Nath at the DPP office;
f)	Tupou Bokadi (Senior) who produced his son, the 1st Accused at the Samabula Police Station on 04/09/13;
g)	PC Qarau who was the charging officer for 1st accused;
h)	DC Sukulu Colati who was the interviewing officer for the 2nd Accused;
i)	Woman Detective Constable Bhawana who was the witnessing officer for the caution interview of 2nd Accused;
j)	DC Isireli Tora who was the interviewing officer of 3rd Accused;
k)	DC Josaia Soro who was the witnessing officer for the caution interview of 3rd Accused;
l)	PC Kolinio Baivou who was the charging officer for 3rd Accused;
m)	DC Abdul Khan who is the Investigating Officer of this case.

16.	All Police officers said in evidence that they did not assault, threaten or make any false promise to any of the accused in this case.

17.	It is pertinent to note the following evidence of the prosecution witnesses;

a)	DC Viliame Vereivalu arrested the 2nd accused on 06th September 2013 around 2300 hours. He accepted during cross examination that there is an entry on 07th September 2013 in the station diary of Nasinu Police Station at 0054 hours stating that "0054hrs. Further ref. to SD03. I notice a cut on Semisi Rabakoko's nose, cut on lower lip and inside of his mouth and also notice that he was limping with a swollen right knee". He said that though that entry is there, during the time he arrested the accused, he did not assault the accused and he has no idea with regard to other officers.

b)	Mr. Shivendra Nath is employed at the Office of the DPP. He said he was the officer in carriage of CF 11639/2013 case name, State v. Ledua Gudru before he was transferred to Nadi office. He said Investigating Officer Mr. Maciu Vakaruru gave him the cell book and the station diary pertaining to CF 11639/2013 before the 08th August 2014 in order for them to be disclosed in that case for the voir dire which was fixed on 08th August 2014. He said he did not receive original caution interview statements and charge statements of Tupou Bokadi, Semisi Rabakoko and Ledua Gudru in this case from Mr. Maciu Vakaruru at any stage.

c)	DC Maciu Vakaruru said he commenced the caution interview of the 1st accused on 04/09/13 and recommenced on 07/09/13 and as far as he can recall, there was no witnessing officer. He believes that the reason for the break from 04th to 07th was for the 1st accused to appear for another case. He said after signing, he made copies of the caution interview. The original was kept at the exhibit room and a copy was attached to the file. A photocopy was shown to him which he identified as a photocopy of the caution interview of the 1st accused. He said he believes VD01 is the same document he photocopied and kept in the Police docket, and that it is a truthful photocopy of the caution interview of the 1st accused. He said the original was brought by him to DPP office and was handed over to Mr. Shirendra Nath on Mr. Nath's verbal request over the phone on 08/08/14. According to him Mr. Nath on that day requested for the caution interview statements and charge statements of all accused persons in this case, the station diary and the cell book because there was hearing on the same day. Therefore he handed over the original caution interview statement and caution statements of Tupou Bokadi, Semisi Rabakoko and Ledua Gudru along with the cell book and the station diary to Mr. Nath on that day. He couldn't recall whether there was any acknowledgment by Mr. Nath. He said the exhibits he handed over to Mr. Nath were not returned to him or to the exhibit writer thereafter. He said he also conducted a search in the exhibit room with WPC Sainimere and in his office with DC Abdul for the documents. He could not recall whether there were any alterations done to the photocopies. He identified his signatures and 1st accused's signatures on the photocopy shown.

During the cross-examination on behalf of 1st Accused he said the 1st Accused was interviewed over a period of 5 days. Though he said that 1st Accused was released on the 4th and brought back on 07th, the counsel pointed out that there is no entry which confirms that he was released on 04th in the relevant station diary. He still said he believe that 1st Accused might have been released on the 2nd day. He also said that when he say "I believe" in his evidence that would mean that he cannot confirm that the particular event he is questioned actually took place, and he only believes that it might have happened. He said he does not have any proof of dispatching the documents to Mr. Nath.

During the cross-examination by Mr. Romanu, he said that Mr. Nath's evidence to the effect that Mr. Nath did not receive the caution interview and caution statement of Ledua Gudru on 08/08/14 from him is false. He said that he believe he might have spoken to the 3rd Accused on 07th but cannot recall seeing any visible injuries.

d)	PC Qarau said he was the charging officer for 1st accused. After recording the charge statement he gave the charge statement to Crime Officer Iakobo. He said that Investigating Officer (IO) should be making photocopies and also responsible for the safe keeping of the original. He identified his signature and the signature of the 1st Accused in the photocopy of the charge statement shown to him.
During the cross-examination he admitted after looking at entry 145 of the Samabula Police Station Diary that he handed over the charge statement to DC Manasa and not to the Crime Officer. It was suggested that 1st Accused did not make any statement, the statement was fabricated and the signature is forged.

e)	DC Sukulu Colati said he interviewed 2nd Accused under caution on 07th and 08th of September 2013. After perusing the photocopy sought to be used, he said it is a photocopy of the caution interview he recorded. He identified his signature, witnessing officer's signature and the 2nd accused's signature.
He said he made photocopies of the original caution interview and left both original and the copy in the police docket for the IO to exhibit the original and to compile the docket. The photocopy is a faithful reproduction of the caution interview of 2nd accused, he said.

f)	Woman Detective Constable Bhawana said after signing, DC Sukulu left the caution interview of the 2nd accused in the docket.

g)	DC Isireli Tora said he commenced the caution interview of 3rd accused on 07/09/13. He said after completing the interview it was printed and then signed. Thereafter it was handed over to IO of the case, DC Abdul Khan. When he was shown the photocopy he said that it is the caution interview of 3rd Accused.

h)	DC Josaia Soro during cross-examination agreed that there is a cell book entry at Samabula Police Station on 08/09/13 indicating that there were injuries seen on the 3rd accused.

i)	PC Kolinio Baivou identified the photocopy shown to him as a photocopy of charge statement of 3rd Accused he recorded and he also admitted that he had not signed the charge statement. But he identified his handwriting. He said after the completion he gave the charge statement to DC Tora and that the IO did the photocopying.

j)	DC Abdul Khan said though he is the IO of this case, he did not do anything with regard to the Police docket in this case. He said as this was serious case, it was dealt by the processing team where DC Tora, DC Sukulu and D/Constable Maciu were members.

He said on 15/09/15 he thoroughly checked the exhibit room for about 2 hours with the exhibit writer for the original caution interviews and charge statements in this case to no avail. He said on 21/09/15 he also searched DC Maciu's office and DC Tora's office. This search took about 1½ hours. He said he has not seen the photocopies of the caution interviews and charge statements of the three accused persons in this case.

During cross-examination by Ms. Drau he said keeping a person under detention for 5 days is unlawful. He also agreed that the 3½ hours search he conducted in total was not a diligent search. During the cross-examination by Mr. Savou he said he did not search Mr. Colati's office who was the interviewing officer of 2nd Accused.

18.	The 1st accused gave evidence and said that he was assaulted and threatened by Police officers during the period he was in Police custody which was from 04th September 2013 to 08th September 2013. He said he was not interviewed on the 07th September and his signature in the alleged caution interview on the 7th September is forged. He did not make the admissions on the 08th September as noted in the caution interview. He was forced to sign the caution interview which contained both questions and answers prepared by the Police. He said he was produced before a Magistrate on 09th September 2013 where he requested for a medical checkup from the Magistrate. The medical report issued pursuant to the medical examination directed by the Magistrate was tendered with consent [1DE2]. He said that there were injuries on him as evident in the said medical report on 09th September 2013 which he sustained during the period he was in Police custody.

19.	Then the 2nd accused gave evidence and said that he did not give the information which is contained in the alleged caution interview of his. He was assaulted and threatened by Police officers during his arrest on 06th September 2013 and when he was in Police custody till 08th September 2013. He complained to the Magistrate when he was produced in court on 09th September 2013 and then he was taken to the Hospital for medical examination as directed by the court. His medical report which indicated that he had injuries on 09th September 2013 was tendered with consent [2DE3] when DC Colati gave evidence.

20.	One Yavala Baravilala was called by the 2nd accused who said that he was arrested along with the 2nd accused and was threatened and assaulted by the Police.

Analysis – Admissibility of confessions

21.	Considering the entries found in the cell books and the station diary, the fact that there was a complaint made to the Magistrate on the first date the accused persons were produced in court and the Medical Reports tendered with consent, it is evident that the three accused persons sustained injuries while they were in Police custody. The prosecution had failed to provide any reasonable explanation with regard to those injuries noted by Police officers themselves when the accused persons were still in Police custody and the injuries noted by the Doctor soon after they seized to be in Police custody.

22.	Therefore, the prosecution has failed to prove beyond reasonable doubt that there was no oppression concerning the three accused persons during the time the alleged confessions were made.

23.	However, considering the evidence of the 1st accused and the line of cross-examination of his counsel, though his grounds of objection filed on 21st April 2015 alleges oppression due to assault, his position seems to be that he never made incriminating statements as his signature in the photocopy of the caution interview on the 07th September 2013 is forged and on the 08th September he was forced to sign the questions and answers that were already typed by the Police. It was suggested by the counsel for the 1st accused to PC Qarau who was the charging officer for the 1st accused that the accused did not make any statement and the signature is forged.

24.	Considering the grounds of objections and the evidence of the 2nd accused, it is manifest that the position of the 2nd accused is also that he did not make a confession pertaining to this case and he was merely forced to sign.

25.	The third accused had not filed any grounds of objection. However it is pertinent to note the following questions put to DC Isireli Tora by the counsel for the 3rd accused;

•	"… My client has informed us that he was assaulted, he was forced to admit and answers were provided for him to admit. What do you have to say?"

•	"3rd accused also say, the one that he received at the Magistrate Court looks unusually different from the one that recorded at the Samabula Police Station. What do you have to say?"

26.	Therefore it is manifest that all three accused persons have clearly taken up the position that the caution interviews and the charge statements the prosecution seek to adduce are not made by them inferring fabrication though they also say that they were assaulted by the Police when they were in Police custody.

Conclusion - Admissibility of confessions

27.	Whether or not a particular confession was made by an accused is a question of fact to be decided by the assessors and it is not a question which can be determined in a voir dire. Therefore I am not inclined to exclude the caution interviews of the 1st, 2nd and 3rd accused and the charge statements of the 1st and the 3rd accused in this case.

28.	Hence, I hold that the aforementioned statements can be led in evidence at trial in order for the assessors to decide whether the relevant statements were made by the respective accused persons.

Analysis – Admissibility of secondary evidence

29.	Now, the question is whether the State can be allowed to tender the photocopies of the documents claimed to have been lost in evidence.

30.	It is pertinent to note that;

a)	DC Vakaruru who recorded the caution interview of the 1st accused made photocopies and the original was exhibited in the exhibit room.

However, according to his evidence he believes the photocopy shown to him is the copy he made but cannot confirm.

He said he handed over the original caution interview of the 1st accused and also other lost originals to Mr. Nath. Mr. Nath strongly denied this.

b)	PC Qarau who recorded the charge statement of the 1st accused did not make a photocopy. He said he handed over the original to Crime Officer Iokobo and later on admitted that it was given to one DC Manasa. DC Manasa was not called by the prosecution.

c)	DC Colati who recorded the caution interview of the 2nd accused said he made a photocopy of the original and left both the original and the photocopy in the police docket. The witnessing officer Bhawana only said that he left the original in the police docket.

d)	DC Tora who recorded the caution interview of the 3rd accused did not make a photocopy and he said he handed over the original to IO, DC Khan. But DC Khan said he did not deal with the police docket of this case.

e)	PC Kolinio who recorded the charge statement of the 3rd accused did not make a photocopy of the original. He said that he handed over the original to DC Tora. DC Tora did not confirm this.

31.	With regard to the question whether the original documents in question are lost, it appears that the Prosecution itself was not sure of its position. The Prosecution presented two contradictory versions with regard to the last known place of the originals. DC Vakaruru said that it was taken to the DPP office and given to Mr. Nath and Mr. Nath said that he never received the originals in question from DC Vakaruru. It is not up to this court to investigate into the issue and find out who had the custody of the documents before they were lost, who is responsible for losing the documents or to make a ruling with regard to which prosecution witness' version is reliable. It was up to the prosecution to make a proper and a thorough investigation into the matter and place credible evidence before this court that the original is lost if that is congruent with the finding of such investigation.

32.	In order to establish that the secondary evidence is a true and faithful reproduction in all respects of the original;

-	There should be evidence of a witness who testifies that the photocopy sought to be tendered was made by him/her from the original; or

-	There should be evidence of a witness who testifies that the photocopy sought to be tendered was checked with the original by him or her; or

-	There should be evidence of a witness who saw the original and who can testify from his/her personal recollection with regard to the exact contents of the entire original document.

33.	The court cannot simply accept the evidence of a witness who says "this is a photocopy of the original" to be satisfied beyond reasonable doubt that the particular copy sought to be adduced in evidence is a true and faithful reproduction of the original. The prosecution failed in this regard.

34.	I am not satisfied from the evidence presented by the prosecution that the originals are no longer in existence or that they cannot be found by any reasonable amount of effort.

35.	With regard to the question whether a due diligent search was made, I note the evidence of the Investigating Officer of the case DC Abdul Khan who admitted during cross examination that the search he did for 31/2 hours in total was not a diligent search. The court cannot go beyond that admission to hold that there was a due and diligent search made for the missing originals in this case.

36.	There is no clear evidence on what happened to the originals from the time they were first known to be in existence until it was realized that they are lost.

37.	The prosecution also failed to provide a clear picture with regard to the photocopies they sought to adduce as secondary evidence vis-à-vis when and how the photocopies they sought to adduce were made and how those photocopies came into the hands of the witnesses seeking to tender in evidence. The Police witnesses were at variance with regard to who compiled the docket in this case. Most of the witnesses said that the proper procedure is for the IO to compile the docket whereas, the IO DC Khan gave evidence saying that he did not deal with the police docket in this case in any manner and it was compiled by officers of the processing unit.

Conclusion – Admissibility of photocopies

38.	Therefore, I hold that the photocopies the prosecution seek to adduce as secondary evidence namely, the alleged photocopies of the caution interview and charge statement of the 1st accused [VDPE 1 & MFI 1]; the caution interview of the 2nd accused [MFI 2] and the caution interview and the charge statement of the 3rd accused [MFI 3 & MFI 4] cannot be admitted in evidence.

39.	I order so accordingly.

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the 1st Accused : Ms. R. Drau, Barrister and Solicitor, Suva.
Solicitors for the 2nd Accused : Legal Aid Commission, Suva
Solicitor for the 3rd Accused : Mr. I. Romanu, Barrister and Solicitor, Suva