IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 114/08

BETWEEN:

STATE

AND:

VILIAME SAWAILAU

Prosecution: Mr S. Tuwaqa (DPO/W)
Accused: Ms Tarai (Legal Aid Office)

Hearing: 19th April 2013 and 18th May 2013
Ruling: 31st July 2013

Ruling on Voir Dire

Background

1.	The accused was charged for the offence of Rape contrary to section 149 & 150 of the Penal Code, Cap 17. 

2.	The accused pleaded not guilty to the offence and matter proceeded for hearing.

3.	Initially counsel for accused filed grounds in objection to the caution interview being admitted as part of prosecution evidence. The grounds of objection as follows:

•	The confessions were obtained forcefully by police in the form of intimidation, threats and inducement;

•	The confessions were obtained by police through verbal pressure;

•	The confessions were not read back to accused by police;

•	The confessions and signature were fabricated by police;

•	There breaches of accused rights under the Judges Rules and Article 10(1) and 14(3)(g) of the International Covenant on Civil and Political Rights, prior to and during the caution interview. 

Law

4.	His Lordship Kumararatnam J, stated at paragraphs 2 & 3 in the case of State v Eparama Mani, HAC 98/2010:

"The test for the admissibility of statements made by an accused to person in authority is whether they were voluntary, obtained without oppression or unfairness or in breach of any Constitutional Rights now Common Law rights. The burden proving voluntariness, fairness, lack of oppression and observance of common law rights rests on the prosecution and all matters must be proved beyond reasonable doubt.

 Evidence of threats of violence, if accepted by the court, is sufficient to raise a reasonable doubt as to voluntariness. If what the accused says is true, it would create an oppressive climate of fear."

5.	Further in the case of State v Rokotuiwai - ruling on voir dire [1996] FJHC 159; Hac0009r.95s (21 November 1996), the court referred to the case of Shiu Charan v R (F.C.A., Crim. App. 46/83) whereby it was stated 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." 

6.	Bearing in mind the above principles on voluntariness of a confession, I now consider the evidence adduced by prosecution for purpose of voir dire only.

Evidence

7.	PW5 – Constable Hakim

He was on crime standby when he received report of an allegation of rape from Nukulau village. He went to attend the report with PC Paul and WPC Nandhani. At village met PW4 (Meli Nausuca) visited scene and also arrested accused and brought him to police station. Accused was informed of his rights and he was not assaulted by them. Accused did not complain of any assault. He was taken in police vehicle. Accused wasn't threatened, induced or assaulted accused whilst being escorted to the station.

In cross examination confirms that accused was given his rights. He informed accused of the allegation and that they were taking him to station for questioning and also informed accused of his right to counsel. According to him accused appeared to understand rights given to him and understood what they told him. He was not present during the caution interview. He confirms that his name appears on the caution interview however he was not present and doesn't know why his name is written in the interview. He didn't initial the interview and the person who put his name in the interview is lying. He didn't tell PC Esava to write down rape in the interview. He was not present during the interview.

In re-examination he stated that his not telling lies to court. He was to be present for the interview however he was not present. PC Esava must have put his name down in the interview.

8.	PW6 – PC2656 Esava

He recalls caution interviewing the accused at CID office Rakiraki Police Station. Accused appeared normal and Constable Hakim was present as witnessing officer. Rights of accused were given. He didn't assault, threaten or intimidate the accused at any time and neither did any police officer do the same whilst accused was in their custody. Accused made no complaints. Shown interview and identifies his signature and signature of accused.

In cross examination he recalls that Constable Hakim was also present. He denies accused confessing to assault of complainant only. He stated that accused admitted the allegation of rape. He stated that accused never wanted the interview read back to him and he never read back the interview. He was aware that accused only reached class 5 and didn't understand English. He explained the medical report to accused in Fijian. He was not told by PC Hakim to write down in interview that accused raped. He didn't tell accused to admit the offence. He confirms that accused signed the interview but never signed the last page of the interview. He denies forging accused signature on last page on copy of interview. He doesn't know who signed accused signature on last page of copy of interview. He didn't fabricate accused answers. Accused didn't sign last page of interview as he forgot to give last page to accused to sign. He stated that Judge's rules were never breached. He wrote down what accused told him. He didn't force accused to admit to the allegation of rape. Answers of accused were not obtained by force.

In re-examination he stated that his not lying to court. He didn't breach judge's rules and he didn't fabricate the caution interview of accused.

9.	The accused also testified and told the court that he was interview by PC Esava in the presence of Constable Hakim. He admitted to them that he assaulted the complainant but never admitted that he raped her. PC Esava was writing interview and Constable Hakim was seating there and told PC Esava to write that I committed rape. The interview was read back to him but the rape part was never read to him. He never signed the last page of the interview.

In cross examination he stated that he can't recall how long interview took. PC Hakim was present and seated close by the table. Hakim was present but he can't recall whether he was present throughout the interview. He stated that interview was read back to him.
In re-examination he stated that the interview was read back but the rape part was never mentioned to him.

Analysis & Finding

10.	Both witnesses for prosecution (PW5 and PW6) have denied any threats, intimidation or assault on accused at any time whilst he was in their custody from the place of arrest and whilst at the police station.

11.	They stated that accused appeared normal, was given his rights and never made any complaints. It was also confirmed that accused admitted to the allegation of assault and rape. It was also confirmed that nothing was fabricated in accused caution interview. However whilst PW5 stated that he was never present in the interview, PW6 was adamant that he was present as witnessing officer. 

12.	Further PW6 doesn't deny that accused didn't sign in the last page of the interview as he forgot to give him the said page to sign. He denies forging accused signature on copy of interview although there appears to be a signature under accused name.

13.	The accused on the other hand states that his caution interview was fabricated. He never admitted to the rape offence but only admitted to assaulting the complainant. The interview was read back to him but nothing about the offence of rape was read to him. PC Hakim was present during the interview and was informing PC Esava to write in the interview that he raped the complainant. 

14.	It seems from the evidence that the two prosecution witnesses have denied outright the allegation made by the accused. Accused doesn't deny admitting the allegation of assault. He nonetheless denies making admissions to the allegation of rape. He said it was fabricated by police.

15.	To determine whether the confession was actually fabricated is in the opinion of the court not so much a question of admissibility but more so a question of weight, which the court will have to resolve at a later stage. At this stage I'm satisfied beyond a reasonable doubt that there were no assaults, threats or intimidation on accused by police for him to confess to the allegations made. I find that his confession was voluntarily made. 
 
16.	Nonetheless the issue doesn't rest there. Apparently regardless of whether I accept or not accept the accused version of events, the onus is still on prosecution to prove beyond a reasonable doubt, that apart from his caution interview and/or charge being taken voluntarily, prosecution need to prove that the circumstances of being kept in custody including the duration in police custody did not overbear the accused will or neither was those circumstances unfair to the accused (R v Sang – supra).

17.	I have carefully considered the evidence and I find there being no evidence provided by prosecution with regard to accused circumstances whilst in custody. No station diary and no cell book were tendered as evidence to assist the court in properly assessing whether accused was not unfairly treated whilst in police custody. Was he given meals? Was he given rest? How long was he kept in custody? The list is not exhaustive but these are some of the reasonable doubts which the court bears in mind when considering the accused circumstances whilst in police custody. The prosecution having the onus should have called evidence to alleviate the said doubts. No such evidence was adduced.

18.	In the absence of such evidence I find that prosecution have failed to prove beyond a reasonable doubt that accused was treated fairly and there was no overbearing of accused will whilst in police custody.

19.	Any such doubts must go in favor of the accused hence I find the caution interview of accused inadmissible as evidence.

20.	I rule so accordingly.

Samuela Qica
Resident Magistrate

31st July 2013