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State v Kumar - Written Reasons for Voir Dire Ruling [2015] FJHC 861; HAC077.2013LAB (30 October 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 077 OF 2013LAB

STATE

V

BHUPENDRA KUMAR

Counsels : Ms. W. Elo for State
Mr. M. Fesaitu for Accused

Hearing : 27 October, 2015
Ruling : 27 October, 2015
Written Reasons : 30 October, 2015

WRITTEN REASONS FOR VOIR DIRE RULING

1. The accused was charged with three counts of "rape", contrary to section 207 (1) and (2) (c) of the Crimes Decree 2009, and one count of "indecently insulting or annoying a person", contrary to section 213 (1) (a) of the same Decree.

2. During the police investigation, the accused was caution interviewed by PC 4278 Arvin Maharaj at Deketi Police Post on 22 October 2013. The interview was witnessed by WPC 3166 Salina. The accused was asked a total of 64 questions and he gave 64 answers. During the interview, the accused allegedly confessed to one count of rape against the complainant [see questions and answers 25 to 33, 53 and 59]. In this voir dire, the accused is challenging the admissibility of his police caution interview statements, on the ground that the police forced the statements out of him.

3. The prosecution called two witnesses, that is, the police caution interview officer, PC 4278 Arvin Maharaj (PW1), and the witnessing officer, Ms. Salina Mila (PW2), who was formerly WPC 3166. The defence called the accused himself, as their only witness. I heard the parties on 27 October 2015, and at the end of the voir dire, I ruled the accused's police caution interview statements as admissible evidence. I said I would give my written reasons later. Below are my reasons.

4. The law in this area is well settled. On 13th July 1984, the Fiji Court of Appeal in Ganga Ram & Shiu Charan v Reginam, Criminal Appeal No. 46 of 1983, said the following, "...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 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 of 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 (1941) AC 599, DPP v Ping 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, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. Regina v Sang [1979] UKHL 3; (1980) AC 402, 436 @ C – E. This is a matter of overriding discretion and one cannot specifically categorize the matters which might be taken into account..."

5. I have carefully considered the evidence of all the prosecutions' and defences' witnesses. I have compared and analyzed all of them. After considering the authority mentioned in paragraph 4 hereof, and after looking at all the facts, I have come to the conclusion that the accused gave his caution interview statements voluntarily and out of his own free will. I therefore rule that the caution interview statements are admissible evidence, and could be used in the trial proper, but their acceptance or otherwise, are matters for the assessors.

6. In giving my reasons abovementioned, I bear in mind what the Court of appeal said in Sisa Kalisoqo v Reginam, Criminal Appeal No. 52 of 1984, where their Lordships said: "...We have of recent times said that in giving a decision after a trial within a trial there are good reasons for the Judge to express himself with an economy of words...:

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Labasa

Solicitor for the Accused : Office of the Legal Aid Commission, Labasa