IN THE MAGISTRATE’S COURT
AT SUVA, FIJI

CRIMINAL CASE N0: 1598/2010

BETWEEN:

THE STATE
PROSECUTION

AND:

SEKONAIA RATU
ACCUSED

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe, 

COUNSEL: Mrs. Prasad J for the Prosecution,
Accused in person,

Date of the Ruling: 23rd day of August 2012.

RULING

1.	The accused person who is charged with one count of “Indecently insulting or annoying any person” contrary to section 213 (a ) of Crimes Decree No 44 0f 2009 challenged the admissibility of the confession alleged to have been made in the caution interview made by him on the 9th day of September 2010. The accused informed the court that he was threaten by Cpl Mikaeli Koro and Detective Copral George to admit the commission of this alleged offence during the record of his caution interview. 

2.	Accordingly a voir dire hearing commenced on the 29th day of September 2011. The prosecution called 2 witnesses namely D/sergeant Mikaeli Koro who recorded the caution interview of the accused and DC 4121 Manase who is the charging officer. The second accused person gave evidence on oaths for the defence. Subsequently the learned counsel for the Prosecution and the Accused person filled their respective written submissions. 

3.	Having carefully considered the evidences adduced by the prosecution and the defence and their respective written submissions, I now proceed to pronounce my ruling in this voir dire hearing. 

4.	The prosecution categorically denied the allegation of this alleged threat during the record of caution interview. The evidence given by two prosecution witnesses were extensively covered in details the record of caution interview and the charging statement of the accused person. 

5.	Though I do not expect to repetitive, I opt to briefly summerise the evidence presented by the prosecution witnesses prior to analysis the evidence with the legal principles pertaining to the admissibility of the confession in the caution interview. 

6.	The first prosecution witness D/Sergeant Mikaeli Koro who is the interviewing officer of the accused. He stated in his evidence that he conducted the caution interview of the accused in his office at the Lami Police station. He affirmatively stated that he followed all formalities and procedures to ensure the rights of the accused person prior and during the record of the caution interview. He stated that the accused was seated in front of him at the other side of the table and was corporative and voluntarily gave his statement. Sergeant Mikaeli further stated that the accused was not induced, threaten, forced or intimidated and no promise was made on him before or during the caution interview. 

7.	Sergeant Mikaeli denied the threatening of the accused with an iron rob during his cross examination however only in his reexamination he admits the presence of an iron rob inside his room at the time of recording of this caution interview. He stated that the said iron rob is an exhibit for another crime. The first prosecution witness admits that no witnessing officer were present during the record of the caution interview. 

8.	Second prosecution witness is DC Manasa who is the charging officer. His evidence was brief and stated that he followed all formalities and procedures during the record of the charging statement. 

9.	Subsequently, the accused person gave evidence on oath and stated the Sergeant Mikaeli threaten him that if the accused did not admit the commission of this alleged offence, he will whack the accused with the iron rob. In his cross examination he admits that he did not inform any higher authority about this allege threat by Sergeant Mikaeli and find excuses for it in his lack of knowledge in court proceedings. 

10.	At the conclusion of the hearing the prosecution and the defence tendered their respective written submissions. The learned counsel for the Prosecution in her submission affirmatively submitted that the evidence adduced by the prosecution has overwhelmingly established that the record of caution interview of the accused person was voluntarily and fairly obtained. Furthermore the learned counsel for the prosecution brought several judicial authorities into my consideration in her submission in order to support her contention. She urges not to accept the evidence of the accused person as he changes his position and lately alleges the fabrication of his caution interview which he never mentioned at the beginning of this hearing. The accused person also submitted a detailed written submission which I carefully perused and considered in this ruling. 

11.	Having briefly reviewed the evidence adduced by both parties and their respective written submissions, I now proceed to examine the relevant legal principles pertaining to the admissibility of the confession in the caution interview. 

12.	In the Privy Council case of WONG KAM-MING v THE QUEEN (1982) A.C. 247 at 261 discussed the basic control over admissibility of confessionary statement of the accused person, where it was held "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 (1914-15) AER 874 at 877. It is to the evidence that the court must turn for an answer to the voluntariness of the confessions."

13.	In Shiu Charan v R (F.C.A. Crim. App. 46/83) 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 (1980) AC 402, 436 @ c - E." (State v Rokotuiwai - [1996] FJHC 159; Hac0009r.95s (21 November 1996)

14.	His Lordship Justice Nawana in his ruling on voir dire in State v Malelei ( criminal case no:HAC 147/2007) observed the test enunciated in Shiu Charan (supra) on the admissibility of confessions of the accused person. Justice Nawana held that "A confession, as observed at the out-set of this ruling, is an objectionable item of evidence in view of its inherent infirmities. Its admission in evidence should, therefore, be scrupulously examined by court and apply the widest possible test that favours an accused person. Accordingly, having regard to the facts and circumstances of this case, I am inclined to adopt the four-pronged test laid down in the English PACE Act to expand the scope of the test enunciated in Shiu Charan v R (supra)………….

A confession, in general, is violative of the rule against self-incrimination, which courts strive to uphold at all times as an inviolable principle at common law. The reliance on a confession to advance a prosecution case, in my view, is to perpetuate a residuary principle of archaic criminal law. ……………….

In countries, where such confessions are made admissible, for example in Australia stringent legal provisions are in place for their inclusion in evidence. The common law requirement that only confessions made voluntarily should be admitted by court is found under Section 84 of the Evidence Act 1995 of Australia. It provides that a confession is not admissible unless the court is satisfied that the confession is not influenced by violent, oppressive, inhumane or degrading conduct or such threat. Based on these principles, confessions are excluded by the use of different tests as expounded in the cases of R. v. Swaffield and Pavic v Queen 1998 HCA 1 ((1998) 192CLR 159, where the Australian High Court formulated the following:

(a)	Was it voluntary? If so, 

(b)	Is it reliable? If so, 

(c)	Should it be excluded in the exercise of discretion? 

15.	The burden is on the prosecution to prove beyond reasonable doubt that the statement made in caution interview is made in voluntarily and fairness. (State v Rokotuiwai - [1996] FJHC 159; Hac0009r.95s (21 November 1996).

16.	Bearing in mind the laws and above stated judicial precedence pertaining to the admissibility of confession in the caution interview of the accused person and the laws pertaining to the legal burden on the prosecution to prove beyond reasonable doubt, I now proceed to analysis the evidence adduced by the prosecution and the defense. 

17.	In view of the aforementioned judicial precedents on the admissibility of the confession in the caution interview, I find that the record of caution interview is one of the most prominence cornerstones of the investigation. Hence the investigators must exercise a proper and due diligence of professionalism and fairness in respect of recording of caution interview. 

18.	Moreover, the court should consider the atmospheric authoritative environment in which the accused person has to make his statement in caution interview. The accused is in police custody and kept in the police station which naturally enhances an aversive environment in the mind of the accused person. In such a condition, the interviewing officer has a stupendous responsibility to conduct the caution interview in a proper and fairly manner. 

19.	I now have to determine whether the manner in which this caution interview of the accused person was recorded would meet such a high standard of professionalism and fairness as enunciated in Shiu Charan v R (Supre) and State v Malelei (supra). 

20.	The main contention of the accused person is that he was threaten with an iron rob to admit the allegation by Sergeant Mikaeli. Sergeant Mikaeli admits the presence of an iron rob inside the room at the time of recording of this caution interview but denies the allegation of threatening the accused person with it. He stated that the iron rob is an exhibit for another crime. The prosecution witness did not explain why an officer kept such an item inside of his office instead of handing it to the exhibit room of the police station. As I stated above, the officer who conducts the caution interview has a great responsibility to provide conducive and accommodative environment for the accused person to make his statement in caution interview. The explanation of Sergeant Mikaeli is not satisfactory wherefore, I do not accept his explanation for the presences of an iron rob inside his room at the time of the record of this caution interview. 

21.	In view of these findings, I find that the prosecution has not properly discharged their burden to remove all possible reasonable doubts that the caution interview was conducted in fairly manner and voluntarily. 

22.	In view of the foregoing reasons set out in above paragraphs, I am of the view that the evidence presented by the prosecution has failed to establish beyond reasonable doubt that the confessionary statement of the accused person in his caution interview was recorded in line with the principles set out in the Shui Charan v R (Supra) and State v Maleli (Supra). In this circumstance, I am of the view that the admission of the confession of the accused person in his caution interview as evidence of the prosecution would adversely affects on the fairness of this hearing. 

23.	Accordingly, I hold that the confession of the accused person in his caution interview dated 9th of September 2010 is not admissible as evidence in this trial on the ground of unfairness and involuntariness. I accordingly reject the same. 

On this 23rd day of August 2012.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.