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State v Bete [2015] FJHC 953; HAC70.2014 (1 December 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 70 OF 2014

BETWEEN :

STATE

AND :

JIMI BETE

Counsel : Mr. Niudamu for State
Mr. Aman Ravindra-Singh & Mr. Anthony for the Accused

Date of Hearing : 27th and 30th of November 2015
Date of Ruling : 01st December 2015

Introduction

1. Prosecution proposes to give in evidence the caution interview of the accused person, for which accused person objected on the ground that he was intimidated during the recording of his caution interview.
2. Accordingly, the voir dire hearing was conducted on the 27th and 30th of November 2015. The prosecution called two witnesses. The accused gave evidence on oaths, but did not call any other witnesses for the defence. At the conclusion of the hearing the parties were given direction to file their respective written submissions, which they filed accordingly. Having carefully considered the evidence adduced during the course of the hearing, I now proceed to pronounce my ruling as follows.

The Law
3. The Privy Council in Wong Kam –Ming v The Queen (1982) A.C. 247 at 261 has discussed the basic control over admissibility of statement, where it was held that; "The basic control over admissibility of statement 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."
4. The Fiji Court of Appeal in Shiu Charan v R (F.C.A. Crim. App. 46/83) has discussed the applicable test of admissibility of caution interview of the accused person at the trial, where it was held that "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 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 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, 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." (State v Rokotuiwai - [1996] FJHC 159; Hac0009r.95s (21 November 1996).

5. It appears that the test enunciated in Shiu Charan (supra) constitutes two components. The first is the test of oppression. The court is required to satisfy that the statement in the caution interview had been taken without any form of force, threats, intimidation, or inducement by offer of any advantage. The second component is that, even though the court is satisfied that the statement was given voluntarily without any form of threat, force, intimidation or inducement, it is still required to satisfy that no any general grounds of unfairness existed before or during the recording of the caution interview.
Analyses
6. The Interviewing officer and the witnessing officer gave evidence for the prosecution, explaining the manner that they recorded the caution interview of the accused person. Both of them stated that there was no intimidation on the accused to give his answers. The accused freely gave his answers in the caution interview and was corporative to the police.
7. The accused in his evidence stated that the police asked him to tell the truth and he then told them the truth in his caution interview.
8. In view of the evidence presented during the voir dire hearing, I am satisfied that the accused was not intimidated by the interviewing officer or the witnessing officer during the recording of his caution interview. I accordingly hold that the caution interview of the accused person is admissible in evidence at the hearing.

R. D. R. ThusharaRajasinghe
Judge

At Lautoka
01st of December 2015

Solicitors : Office of the Director of Public Prosecutions
Aman Ravindra Singh Lawyers for the Second Accused person