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State v Christopher - Vore Dire Ruling [2012] FJMC 276; Criminal Case 683.2007 (2 November 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF FIJI
AT SUVA

Criminal case No: 683/07

THE STATE

V

JOSEPH CHRISTOPHER

Prosecution : P.C Yasin.
Accused : in person.

RULING ON VOIR DIRE

1. The accused of this case Joseph Christopher is charged for Robbery with Violence contrary to section 293(1) (b) of the Penal Code Act 17. At the outset I note that both parties have agreed to adopt evidence that was led before, as three learned magistrates who heard this matter are no longer in the magistracy.
   
2. On 02.04.2009 the prosecution intended to produce the caution interview and the charging statement of Joseph Christopher as part of the evidence. However the accused objected to the said application on the basis that it was not a statement which was made voluntarily by him. Thereafter the learned magistrate had ordered the prosecution a trial within a trial.
   
3. After several adjournments the prosecution called their witnesses on 23.03.2010 for the voire-dire.
   
4. The principles governing the admissibility of an admission or a confession are well settled. A confession or an admission made by an accused to a person in authority could not be properly given in evidence unless it is shown that it was made voluntarily, that is, not obtained through violence, fear or prejudice, oppression, threats and promises or other inducements (Ibrahim v R {1914} AC 59).
   
5. Even if such voluntariness is established, the trial court has discretion to exclude a confession or an admission on the ground of unfairness (R v Sang [1979] UKHL 3; [1980] AC 402). A further ground that an admission or a confession could be excluded is for breaches of constitutional rights.
   
6. Oppression is anything that undermines or weakens the exercise of free will (R v Prestly [1965] 51 Cr. App.R). The onus of proving voluntariness, fairness and lack of oppression is on the prosecution and they must prove these matters beyond a reasonable doubt. If there has been a breach of any of the accused's constitutional rights, the prosecution must prove beyond a reasonable doubt that the accused was not thereby prejudiced.
   
7. The prosecution called three witnesses for this voir dire. Joseph Christopher being a serving prisoner remained silent after the prosecution failed to contact and summon his three witnesses.
   
8. Police Constable 2006 Waqanaceva testified first and stated that he had been on duty at Samabula police station on the day Joseph Chirstopher was arrested. He recalled the day 15.04.2007 which was a Sunday. He stated that he did not see any visible injuries on the accused. He further added that there were no complaints made by the accused. The station diary was marked during his evidence.
   
9. In cross examination the witness remained silent as he could not answer the question posed by the accused on the other detainees. He admitted that he did not speak to the accused. His confirmation on the issue whether there were any injuries, are based on the station diary. His position is that he always makes entries if there were any injuries.
   
10. Investigating officer DC 3476 Sukulu testified after PC 2006 Waqanaceva. He was called by the station to record the statement of the accused after the arrest. Witness stated that the accused was locked inside the cell before the recording of the statement. He could not recall the person who escorted the accused to him.
    
11. DC Sukulu stated that he did not force assault or promised the accused to give a statement. However it is to be noted that this witness stated that he did not recall whether there were any injuries on the accused. Later he added that there were no visible injuries on the accused.
    
12. During the cross examination the accused suggested that the witness slapped when he requested for a counsel to be present during his interview. Witness stated that he did not do that as they were neighbours and knew each other for a long time. When the Court questioned as to how then he conducted the interview if they were known to each other for a long period, witness tried to dilute the position by interpreting it to an official relationship.
    
13. The accused further stated that this witness forced him to give the statement by slapping and verbally threatening him that he will be taken in to the army camp.
    
14. It is to be noted that the next prosecution witness DC 2923 Bari who was the charging officer too confirmed that the accused is one of his best friends. He was instructed to charge him therefore he carried out the duties. The witness echoed a similar testimony to the interviewing officer DC Sukulu.
    
15. His lordship justice Priyantha Nawana in the case of State V Malelei Cakau HAC 143/2007 held that,
    

'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. It is also paradoxical to have relied on an accused-person and his confession to found a prosecution, when the modern trends of proof require the prosecution to prove its case on its own. The dependence on an accused-person's confession, on the other hand, results in the inefficacious scenario of police inaction to employ scientific and innovative methods in criminal investigations. Instead, it leaves room for impermissible police excesses on suspects in particular and perhaps on members of community in general'.

16. Therefore to act on such statement of an accused person, the evidence of witnesses should be beyond any criticism and accusation.
    
17. It is prominent to note that in this case the two officers who recorded the interview of the accused and the charging statement were known to the accused. In fact as per their very own words, the accused was a friend of them.
    
18. This position was never suggested by the accused person. However the two witnesses voluntarily disclosed this fact during their cross examination. There are two aspects to this situation. There was no material before the Court to conclude on the actual friendship between the parties. If the relationship was good, there can be misunderstandings to the accused person as to how he should act at the recording of caution interview. Whether he should divulge the circumstances as a friend.
    
19. If the relationship was not in good terms, then obviously there were more tendencies to the police officer to act in bad faith.
    
20. In my view this will undoubtedly have prejudicial effect on the voluntariness of the accused person during his interview and charging process. These two situations have been discussed under the common law principles and ruled out on the basis of unfairness to the accused person.
    
21. Although the witnesses attempted to detach later from their own stance, there is no other supportive evidence to corroborate that the accused was not influenced and therefore no unfairness caused. There were no witnessing officers present during the interviews.
    
22. Hon. Justice Nawana in Malelei Cakau stated 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'.
    
23. Therefore I conclude that the prosecution has failed to meet the criteria for recording of confessions of an accused person. Thus it is disqualified to lead before this Court as evidence.
    
24. Accordingly I reject the confession and the charging statement of Joseph Chirstopher on the ground of involuntariness.
    

Yohan Liyanage
Resident Magistrate

02nd November 2012