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State v Vakatawabai [2013] FJMC 428; Criminal Case 318.2013 (25 November 2013)

IN THE MAGISTRATE'S COURT
AT SUVA
(Under Extended Jurisdiction Pursuant to Section 4 (2) of the Criminal Procedure Decree 2009)

IN THE REPUBLIC OF FIJI ISLANDS
Criminal Case No: 318/13, HAC 82/13

State

V

Maika Vakatawabai

Prosecution: Ms. J. Kumar – DPP's Office
Accused: Present - Mr Qetaki (LAC)

RULING – Voir Dire

Introduction
The accused was charged with Conspiracy to Commit Aggravated Robbery, contrary to Section 49 of Crimes Decree Number 44 of 2009.
The defence has challenged the admissibility of the caution interview of the accused. They submitted that it was unfairly and involuntarily obtained. A voir dire was held to determine this.

The Burden and the Legal Test

Justice Madigan in State .v. Temo [2012] FJHC 1122; HAC60.2011 (22 May 2012) stated that "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 (now read Common Law) rights. 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 of course beyond reasonable doubt. I have kept these tests and the burden uppermost in my mind in deciding on this application by the State." This Court has noted the guidelines and the tests as pronounced by his Lordship and works on the basis of this guideline.

The Evidence
The Prosecution called 7 witnesses. The accused gave evidence and no other witnesses were called by the defence.

The 1st prosecution witness was ................ She had interviewed the accused. She told the Court that when the accused came in he was frustrated and he was shivering. He was not ill-treated. The accused looked scared and frightened. In cross-examination she told the Court that her supervisor (IP Munsami) was in the room as the Witnessing Officer. She agreed in cross-examination that the interview took 1 hour 37 minutes, in all 32 questions were asked and no break was given to the accused. She also agreed that it was a long time. The witnessing officer did not counter sign the caution interview.

The 2nd Prosecution witness was IP Munsami, he evidence was that he witnessed the entire interview but did not sign the caution interview.

The accused's version was that he was interviewed by a lady and two other ladies were present in the room where he was interviewed. The Interviewer and the ladies made fun of him. IP Munsami was not present at the caution interview. He also told the Court he had chosen to do the interview in Hindi but the interview was conducted in English.

Analysis

This Court notes the legal test laid down and relied upon in State v Temo [2012] FJHC 1122; HAC60.2011 (22 May 2012).This Court has noted all the evidence and scrutinised the caution interview of the accused. From the caution interview it is clear that the caution interview was not counter-signed by IP Munsami as the witnessing officer. The accused stated that he was not present but 2 other ladies were present. WDC Ana signed the caution interview as a witness.

Having perused the Caution Interview this Court finds that Question 26 as put to the accused is "You told me in question 22 that you did not speak to them? Why?" the response given by the accused was "I lied, because I was scared". The question 22 in the caution interview was ""did you say any words to them before you left the toilet?" the response by the accused was "Yes, I did". The question asked in 26 does not match what was responded to following question 22. When this was raised by the defence in cross-examination the answer given by WDC Ana was that she was mistaken by the question numbering. This is not so. This Court notes that at no stage the accused gave a no response which led to the question in 26. WDC Ana did not agree that such a question was neither unfair nor prejudicial to the accused. This Court has noted from the Caution Interview there were no denials by the accused to have led to such a question by the interviewer. Question 26 seems to have been put in either to show the accused as a liar or spice up the interview. The question was unfair and prejudicial to the accused. It also showed that the interviewer was not focusing on the interview otherwise such a question would not have come up.

This Court finds that the Interview was unfairly conducted. It was quiet long and the Interviewer, who was in control of the interview and in charge of the accused, should have given appropriate breaks during the Interview which lasted bit more than 90 minutes. She had known the accused was scared and frightened. The accused should have been accorded at the least one break. The Court is also not satisfied that witnessing officer, IP Munsami was present for if he was present, he surely would have signed as the witnessing officer and not the interviewer. This Court believes that accused's version.

For the reasons stated herein this Court finds that the caution interview of the accused cannot be admitted into evidence.

Chaitanya Lakshman
RESIDENT MAGISTRATE

25th November 2013