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State v Salabula [2013] FJMC 400; Criminal Case 1971.2008 (18 November 2013)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case No: - 1971/2008

STATE

V

MANASA SALABULA

For Prosecution : Sgt. Feroz
Accused : Not present

Date of hearing : 14th November 2013
Date of Ruling : 18th November 2013

RULING ON VOIR DIRE

[1] The accused is charged with one count of Larceny from Person contrary to section 271 of the Penal Code .

[2] When this was called on 22nd March 2012 the accused informed the Court that he is challenging the confessions in his caution interview and charge statement as he was assaulted by Cpl Kalareti( charging officer), Cpl Epeli and the Interviewing Officer. Therefore the accused was served with voir dire disclosers and the hearing was fixed for 17th July 2012.

[3] As the accused failed to appear on that day the hearing was adjourned and a bench warrant was issued to apprehend him.

[4] He appeared again on 10th July 2013 and the Court again fixed this for vor dire hearing on 14th November 2013.

[5] When this was called on 14th November 2013 again the accused was not present and no valid reasons were before me for his absence. The prosecution was ready with the witnesses and therefore I granted the application by them to proceed with the hearing.

[6] For the hearing the prosecution called two police officers. PW1 was Sgt Eperli and he said he was never involved in this case and did not take any part in arresting the accused. Also at that time he was not in the office.

[7] Second witness was Cpl Kalareti, the charging officer. He was also the IO as well as witnessing officer for the interview. He said the accused was interviewed on 19th November 2008 and all his rights were given. He did not complain about any assault. Also PW2 charged him after that and the accused made a statement voluntarily.

[8] The prosecution did not call the Interviewing Officer and the reason given was that presently he service has been terminated and they could not locate his where abouts.

[9] Having briefly considered the evidence led in the hearing I would in following paragraphs also consider the applicable law in this kind of application.

[10] At common law , a confession made by D to a 'person in authority' could only be admitted in evidence against him if it was proved by the prosecution that he had made it 'voluntarily':

' ... in the sense that it was not obtained by fear of prejudice or hope of advantage excited or held out by a person in authority, or ... by oppression.' DPP v Ping Lin [1978] AC 574, per Lord Hailsham LC at 600 ( Andrew & Hirst on Criminal Evidence at page 569)

[10] In Ibrahim v R [1914] AC 599 at 609 Lord Summer observed :

"It has been long been established ..... that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntarily statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority." (Murphy on Evidence 10th Edition at page 300)

[11 ] In Fiji this was discussed in the case of Ganga Ram & Shiu Charan v Reginam Criminal, Appeal No. 46 of 1983 on 13/7/1984, where the 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".

[12] Therefore the prosecution got the onus to prove that the statement was obtained voluntarily and without use of force, threats, oppression or any inducement.

[13] Also the prosecution needs to prove that the statements were obtained without any breaches of the accused's rights (Judges Rules) and if there were any breaches, there was no resulting prejudice to the accused.

[14] The burden lies on the prosecution as discussed in Ganga Ram & Shiu Charan v Reginam (supra) and standard of proof is beyond reasonable doubt. In Miller V Minister Of Pension [1947] 2 AER Lord Denning explained the 'proof beyond reasonable doubt' as 'That degree is well settled It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of the doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor, which can be dismissed with the sentence "of course it is possible but not in the least probable", the case is proved beyond reasonable doubt, but nothing short of that will suffice.'

[15] Having considered the above case authorities I will now analyze the evidence presented in the hearing. Two main witnesses (PW1 and PW2) called by the prosecution denied any assault of the accused. PW1 also denied he was in the station at that time or having any part in this case.

[16] Even though the prosecution did not call the interviewing officer they called PW2 who was the witnessing officer. Even though his name is not mentioned in the interview I am prepared to accept his evidence. He was also the charging officer and he said the accused gave his interview and statement in the charge sheet voluntarily.

[17] Having considered all the evidence presented in the hearing as well as demeanors of the witnesses I am satisfied that the accused gave these statements voluntarily.

[19] Therefore I decide that the Caution Interview of the accused and charge statement are admissible in the main hearing.

18th November 2013

H.S.P.Somaratne
Resident Magistrate