Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Masiradia [2012] FJMC 235; Criminal Case59.2008 (5 October 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF NAVUA

Criminal Case No: - 59/2008

STATE

V

ANASA MASIRADIA

For Prosecution : Sgt. Lenitasi
Accused : In person

RULING ON VOIR DIRE

[1] The accused is charged with Burglary contrary to s. 299 of the Penal Code as first count and Larceny in dwelling house of property to a value amounting to not less than ten dollars contrary to s. 270 of the Penal Code as second count.

[2] The prosecution wanted to tender the confession made by the accused on 26/02/2008. The accused objected to that.

[3] The accused challenged the admissibility of the confession on following grounds

1. The accused was assaulted by Police officers,
2. The accused opted to be interviewed in Fijian and was not given the opportunity.

100. The accused wanted to make changes to the caution statement and was not allowed.
     

[4] A voir dire hearing was started on 21/06/2010. The prosecution called 5 witnesses and when this was taken before me both parties said they have no objection continuing the hearing before me. Thereafter on 04/09/2012 the prosecution closed their case and the accused also gave sworn evidence. Both parties opted not to file written submissions.

SUMMARAY OF EVIDENCE

[5] The prosecution called 5 witnesses. The accused gave sworn evidence in the hearing. I will briefly look in to the evidence given by all witnesses before dealing with the relevant law on voir dire.

[6] The PW1, Dr. Ranjith Singh examined the accused on 28/02/2008 at Navua hospital. His medical report was marked as EX-1. The PW1 said the injuries consistent with the blunt trauma.

[7] The PW2 was DC 168 Nacani. He did not notice any assault of the accused while in custody.

[8] The PW3 was Jone Makutu. He was the IO as well as the charging officer. The PW3 said there was no threat or duress for the accused.

[9] The PW4 was Iliasa, the interviewing officer. He said the accused opted to be interviewed in English language. The PW4 saw the injuries on the accused. The PW4 said in his evidence in chief that Sgt Jossaia assaulted the accused and caution interview commenced immediately after the assault on the accused(Emphasis added).

[10] The PW5, PC Farook witnessed the caution interview. He did not see any injuries on the accused.

[11] When this was taken before me on 04/09/2012 the prosecution informed they could not locate Inspector (formerly Sgt) Josia and closed their case.

[12] The accused in his evidence said the police took him to the station and spread his face with capsicum. Later Sgt. josia beat his leg and hands and because of that he admitted the offence.

[13] In cross examination he said the police prepared the statement and he signed it. He made a complaint about the assault and he was medically examined. He said when he was chased by the police he did not receive injuries.

THE LAW

[14] In the case of Ganga Ram & Shiu Charan v Reginam Criminal, Appeal No. 46 of 1983 on 13/7/1984, Fiji Court of Appeal stated:

"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 (1914) 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".

[15] Based on above case, I find that the prosecution needs to prove that the statement was obtained voluntarily and without oppression. Also the prosecution needs to prove that the statements were obtained without any breaches of the accused's rights, and if there were any breaches, there was no resulting prejudice to the accused. The standard of proof is that of beyond reasonable doubt.

ANALYSIS OF THE EVIDENCE

[16] In this case I will consider with alleged assault because the accused did not much rely on other two allegations and I believe admissibility of the confession can decided based on that.

[17] The charging officer said there was no threat or inducement for the accused and PW5 who witnesses the interview saw no injuries on the accused. But the PW4 who conducted the interview said he saw the injuries on the accused. According to the court record he also said that Sgt Jossai assaulted the accused and interview commenced immediately after the assault on the accused.

[18] I believe the above admission by the interviewing officer is sufficient to prove the accused's allegation.

[19] The prosecution failed to call Sgt. Jossai who allegedly assaulted the accused. Their excuse was that presently that witness is suspended from the police department service and can't be located. Even though it seems a valid explanation, it would leave a doubt in favor of the accused.

[20] I also note the medical report of the accused which was tendered to the court as EX-1. It shows injuries to the accused and the doctor said in evidence the injuries were consistent with blunt trauma.

[21] Apart from the PW4, other prosecution's witnesses failed to explain how the accused got injured. No evidences were given to show that they were caused before the arrest of the accused. That leaves this court with only inference that the injuries happened whilst accused was in custody.

[22] Based on the above grounds I find that the prosecution has not proved beyond reasonable doubt that the accused gave the confession voluntarily and therefore rule that the confession is not admissible in the trial.

05/10/2012

H.S.P.Somaratne
Resident Magistrate, Navua