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State v Duwai [2013] FJMC 277; Criminal Case 494.2011 (24 July 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT NAVUA

Criminal Case : - 494/2011

STATE

V

SUNIA DUWAI

For Prosecution: Sgt. Lenitasi
Accused: Mr. Vakaloma

RULING ON VOIR DIRE

[1] The accused is charged with one count of Defilement of a Young Person between the age of Thirteen and Sixteen years of age contrary to section 215 (1) of the Crimes Decree No. 44 of 2009.

[2] The learned counsel for the defence objected to the accused's confession based on oppression.

[3] Voir dire hearing was conducted on 02/05/2013 and both parties filed written submissions after that.

SUMMARAY OF EVIDENCE

[4] The prosecution called only one witness, officer who conducted the interview. He said on 28/11/2011 he conducted the interview of the accused. The accused opted to do the interview on Fijian language and PW1 gave him his rights and the interview lasted a day. He said there were no threats, assaults or any force used against the accused.

[5] In cross examination he said that the accused did not read the interview and he did not ask about the age of the child.

[6] The accused in his evidence said that the PW1 did not ask him about his age or age of the victim. He also did not give the accused chance to read back his statement. In cross examination the accused said he did not sign the statement but in re- examination said police showed him the place to sign and he did not read the statement.

THE LAW

[7] In the case of Ganga Ram & Shiu Charan v Reginam Criminal, Appeal No. 46 of 1983 on 13/7/1984, Fiji Court of Appeal discussed the applicable legal principles with regard to admissibility of confessions as follows:

"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".

[8] In Prisestly v R (1965 ) 51 Cr App .R1, English House of Lords held oppression as 'something which tend to sap, and has sapped, that free will which must exists before a confession is voluntarily'

[9] The burden is on the State and this has to be discharged beyond reasonable doubt.

ANALYSIS OF THE EVIDENCE

[10] PW1 who conducted the interview said there were no force or threat and the accused gave his statement voluntarily. He also said the accused opted to do it in Fijian language.

[11] In the notes the accused opted for Fijian language and in the end when given the chance to read the notes did not want to. Therefore I do not accept the accused's evidence in the hearing that he was not given that chance.

[12] PW1 was consistent and whilst the accused in his evidence said he did not sign the statement. But later he changed this when shown his signature in the notes. The accused said he was not asked about his age and education. But in question 2 this Court notes that he was asked about his level of education thus again contradicting his evidence.

[13] Defence's written submission mentioned that the accused said police spoke to him harshly, swore and threatened. But in the evidence the accused never mentioned about these and therefore I am not prepared to accept them.

[14] The interview started around 2120 Hrs on 29/11/2011 and suspended on 2150 Hrs on the same day. It started again on 0905Hrs on next day and finished on that day. This shows it was not conducted continually and the accused was given enough breaks too.

[15] For the above reasons I am satisfied that the prosecution has proved beyond reasonable doubt that the there was no oppression and the accused gave his statement voluntarily. Therefore his caution statement would be admissible in the hearing.

24/07/2013

H.S.P.Somaratne
Resident Magistrate, Navua.