IN THE MAGISTRATE'S COURT AT NASINU

Criminal Case No: 1560 of 2007

DPP

V

LEONE KOTOBALAVU VERESA

RULING ON VOIR DIRE

Ms. Luisa Latu for the State
Mr. Akuila Naco for the accused

Date of Hearing :  5th March, 2012
Date of Ruling :  6th March, 2012

VOIR DIRE RULING
_________________________

[1]	The State seeks to adduce into evidence an interview conducted by Detective Constable Mohammed Iqbal of the accused under caution on the 09th December 2007 at the Valelevu Police Station wherein the accused gave slightly incriminating answers to questions regarding Charge of Rape.

[2]	The accused pleaded not guilty before my brother Magistrate S. Temo (As he then was). Then, Trial proceeded before him. The accused objected that his interview statement being marked as evidence and voir dire was held at the very inception of the trial. His Worship Resident Magistrate Temo held that caution interview is admissible. The trial went up and the accused submitted no case to answer. Before the ruling of no case to answer, Mr. S Temo was appointed as High Court Judge. This trial was fixed de novo by his successor. At the very inception the accused requested that voir dire to be held before me which I allowed. Voir Dire was concluded. The accused objects to the admissibility of his interview on the grounds that:

(i)	His wife was not allowed to stay with him when the caution interview was taken;
(ii)	He was not in good state of mind. 

[3]	The test in assessing whether an interview is admissible in evidence is whether it was made voluntarily or not, obtained without oppression or unfairness and not obtained in breach of the suspect's Constitutional rights. Since there is no constitution in force rights of Common Law to be considered. The burden of proving that the statement was obtained voluntarily, without oppression or unfairness and in accordance with common law rights is on the Prosecution and that burden remains on the State throughout. The standard is beyond reasonable doubt. I have carefully considered these tests and the burden uppermost in my mind in deciding on this application by the State.

[4]	In the case for the prosecution the State called two Police witnesses from the Police Station at Valelevu. Detective Constable Mohammed Iqbal was the Interviewing officer of the accused. He pointed out and identified the accused. He said the interview was held in English and was form of questions and answers. The witness identified the interview notes and he confirmed that the accused had counter signed it. The witness said that the accused was fine and was given his rights to present someone at interview. The interview was tendered as Ex-1. The witness said that the accused requested that his wife to be present at his interview hence he adjourned it. He referred Question 5. The accused's wife came and they talked to each other. Then, he started recording the caution interview. The accused's wife did not stay and she did leave the police station. 

[5]	In Cross examination the witness was referred to answer of the question 70. That was "I can't remember, because I was very drunk" He then was referred answer of the question 41. That was "I started drinking from Sunday 07-12-2007 after Sukuna Bowl at the Post Stadium". The witness answered referring to the question 43, that the accused started drinking from Friday 07-12-2007 and continued till 08-12-2007 late evening. The witness said that he has been serving to the police force for 21 years and he gave all rights to the accused. To prove this he referred question 4 and 5 of the caution interview. The witness said then the accused's wife came and after talking to the accused she left. The defence referred to the questions of 19 and 24 regarding answers of the accused. This was to prove that his state of mind was not good when the caution interview was taken. In that he had said the youngest is the family was the victim. But youngest really was Ronald, his brother not the victim Kelera. Further the accused had mentioned his sister, Margaret is a dentist, but literally she works in a dental clinic. The witness said the wife of the accused went voluntarily and he cannot force her to stay. In the cross examination the accused did not suggest to this witness that his wife was chased or asked to go out when caution interview was taken. 

[6]	The second witness was Police Constable Vinod Chand. He was the charging officer. He identified the accused. He said he charged the accused for the offence and he identified the charging statement. He said it was counter signed by the accused. All rights were given to him. It was tendered as Ex-2. 

[7]	In cross examination he said he was not involving the arrest of the accused. The accused was not smelt of liquor. When he was charged he was ok. 

[8]	The accused gave evidence in the voir dire proceedings. The accused said the caution interview was recorded by DC Iqbal. He was brought by 4 police men at early morning of the 09th December 2007. The accused said he was a Special Inspector in Police force his responsibility was to manage the gymnasium and he was the in charge of police fitness centre. He said he did not undergo any special training as he was "Special Inspector". On 07th December 2007, the Police has won the Sukuna Bowl for the first time. Then, they received prize of $1300 and celebration started. He started drinking at 3pm Friday till Saturday night. He said he was drinking at home that Saturday. Then, interview started Sunday Morning and he said just DC Iqbal and he were there. He said "I was in a state of shock, I was frightened…in that room the one accused person was beaten to death by police". The accused admitted that he talked to his wife. He wanted that wife to be present in the cautioned interview. He said he wanted to talk to his father and his wife and wife to be present in the interview. He said that "because I was shocked and fearful, I thought about my life, I thought if my wife was there she keeps me clam." He said it was done by questions and answers form and he supplied the answers. The accused said "if my wife was present she would have help me to give answers." He referred question 30, said his sister Kelera (victim) was not the youngest in his family. Referring to question 24, he said his sister Margret was not a dentist she works in a dental clinic. 

[9]	In the cross examination, the accused said he was aware of surroundings of Valelevu police station. He admitted he was at Valelevu police station when the caution interview was taken. This means he knew where he was. As to the history of police station he said he knew one accused person was beaten to death, but he did not know the exact room. He admitted that in the caution interview all answers were supplied by him. The accused said that DC Iqbal asked his wife to leave. He further said he does not know rules he is just a Special Officer. The DC Iqbal asked her to leave when the interview started; the accused repeated. 

Analysis

[10]	I have carefully considered the evidence placed before me by both parties. The accused claims that his wife was asked to leave the room when the caution interview was started/taken. When the PW1 was cross examined by the defence but no question was put as such. This came when the State cross examined the accused. The accused claimed she was not present and was asked to go out. The DC Iqbal said he allowed but the accused wife left willingly as he cannot force her to stay. At this juncture court can see question 5 the accused requested that her wife to be present and PW1 suspended the interview on the request of the accused to enable this request. The time was 10.30am. Then his wife arrived at 11.05am. They were allowed to talk till 11.30am. The PW1 noted "she completes talking to him and Leone Veresa (the accused) was satisfied. At 11.33am the caution interview was recommenced. If the accused really wanted that his wife to be present at the interview and if the officer (PW1) wanted to prevent it, he could have easily refused to call his wife and sabotage that request. But the witness suspended the interview and the wife of the accused came and talked to him. This court cannot see any reason why she was not allowed to stay with him. The PW1 said that the wife left and he cannot force her to stay. Possibly the wife of the accused did not want to hear the sexual acts or other heart breaking story from her husband when the caution interview was recording. Therefore, the accused wife and after discussing with him she willingly evaded the interview is the possible explanation for this situation. This is natural behavior of human beings. To this extent, when, court considers the test of probability the accused's version was untenable and PW1's version is tenable that she left the place willingly. The accused is a police officer whether he was a special or regular is a minor matter. Answering to the court he said he did not complain to the higher authority that he was denied his rights and wife was refused to stay when caution interview was taken. This is also surprising behavior of the accused. When court draws its day to day experience of the busy Magistrate's court works, even the lay accused also complain that they were subjected to ill treat and medical report to be done. Why the accused, being a police officer kept silence after being subjected to deprivation of his rights. The accused did not dispute the PW2 vigorously. I therefore find that the evidence of the two Police Officers to be plausible, honest and consistent. There were no discrepancies disclosed. While the accused do not have to prove anything, the burden of proof being on the prosecution throughout, I find that the evidence of accused is exaggerated and implausible. The second ground of voir dire inquiry that the accused was not in state of mind is mere speculation. The discrepancies were shown are minor and it could happen to any human being. It was an error of memory and it could not be interpreted as that the accused was not proper state of mind or intoxicated. On the other hand this objection/ground was not taken as a ground by the accused on the face of case, it came when they cross examined the witnesses. But I considered it for sake of fairness to the accused.

[11]	There was no evidence of assault during the taking of his cautioned interview and the former incident that an accused person was beaten to death in Valelevu Police station is unbelievable. Interview was taken mid noon and the Valelevu police station is always a busy place at this time. Further the accused said in his evidence the wife was outside the room. Therefore there is no fear for death of life as the accused imagined. The accused was not an ordinary accused. He was a Special Police Inspector and the manager of the Police gymnasium. As I noted, by appearance, the accused is handsome, well built, strong and fit person. On top of that he was a Special Inspector. Thus, I hold there is no chance of fear of death and it is mere hallucination. In the light of attendant circumstances, the fear of his life is a myth in this scenario. Hence, this story is seems to me a fabrication and I suppressed it.

[12]	I am satisfied beyond reasonable doubt that the accused's caution interview was obtained fairly and that the answers he gave to questions were given voluntarily and he understood the repercussion of the caution interview. He was not deprived any right under constitution or common law. I hold that it is admissible as evidence in his trial. The Prosecution may use it at the trial proper against the accused.

Sumudu Premachandra [Mr.]
Resident Magistrate- Nasinu

At Nasinu, Fiji Islands
06th March 2012.