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State v Nodrayaca [2013] FJMC 84; Criminal Case 2253.2010 (18 February 2013)

IN THE MAGISTRATE’S COURT
SUVA
REPUBLIC OF FIJI ISLANDS

Criminal Case No. 2253 of 2010

State

v.

Apenisa Nodrayaca

For State : Ms. Sanmogam
Accused : Present - Represented by Mr. H. Rabuku

RULING – Voir Dire

Introduction

The Accused is charged with Theft, contrary to Section 291 (1) of the Crimes Decree, 2009.

The defence has challenged the caution interview of the accused and submitted that it was unfairly and involuntarily obtained.

The Court on 5th and 6th December 2012 held a voir dire.

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 3 witnesses. The accused gave evidence and no other witnesses were called.

Analysis

The Court has considered the submissions by the Defence and the Prosecution in this case. This Court also notes the legal test laid relied upon in State v Temo [2012] FJHC 1122; HAC60.2011 (22 May 2012).

From the evidence of the witnesses in this case this Court finds that there were no threats, or assaults when the accused was interviewed. The accused went over to the FICAC office on all 3 days voluntarily. However, This Court has a number of concerns on the manner in which the Caution Interview was conducted. From the Caution Interview this Court notes that in Question 3, the Interviewing officer asks the accused “Do you have any objection for our interview to be conducted in English language?” Naturally the response by the accused would either be yes or no. If the accused stated no, then it is presumed that the interviewing officer would have asked the accused his choice. It would have been appropriate if the accused was given a choice at the outset and asked “What is his preferred language for the interview?”

The other issue is in relation to the suspension and commencement caution interview. The Caution interview was conducted using a computer over 3 days. PW-1, the Interviewing Officer, Mr. Kuliniasi Saumi informed the Court in cross-examination that “I did not alter the caution interview. Accused cannot sign on the computer. Caution interview suspended at 2.51pm. Accused signed on the same page. When we conduct caution interview after end of particular day we inform the accused that we will disregard the previous page. Informed the accused, did not record it.” Later Pw-1 told this Court “all caution interview not printed on 22nd December. On 22nd December printed those for that day. On last day did not print all and get accuse to sign. On last day accuse signed last 3 pages.”

From the evidence of the PW-1, the Interviewing Officer this Court found that he conducted the caution interview using computers. The accused was asked questions and he answered them. The response by the accused was typed out on the computer and printed for the accused to sign. The accused signed the caution interview at the end of the first day (17th December 2010). When it recommenced the next date (20th December 2010), Interviewing Officer commenced typing on his computer. At the end of the Interviewing on 20th December 2010 printed out another set and got the accused to sign. According to the Interviewing Officer the accused was told that they will disregard the previous page. Which means that the accused signed page 6 on 17th December 2010 and when the interview commenced on 20th December it commenced from where the interview had been suspended. The accused on 20th December 2010 when Page 6 was re-printed, the accused re-signed the page, for the suspension of the interview that he had previously signed on 17th December and at the end of the page for the continuation of interview on 20th December. This was the practice for each suspension and commencement of the caution interview.

The evidence in Court of PW-2 Ms Siteri Rabici was that she had signed the caution interview at the suspension of the interview on 17th December 2010. This Court having perused Page 6, notes that at the suspension of the Interview on 17th December 2010 there is no signature of the witnessing officer. There is also no explanation by the prosecution witnesses of what was done to the pages that were signed by the accused at the suspension of interview. The Court has not been notified when the previous dates caution interview was disregarded, as stated by PW-1 was the particular page destroyed. The disregarded page has not been part of the caution interview of the accused. The Court notes that no entry or record is made in the caution interview that the pages were disregarded and no explanation offered in Court as to what happened to the pages that were disregarded.

In fact the pages of interview given by the accused contained his statement and should not have been disregarded and tendered as such without being disregarded and new pages printed and re-signed. The Interviewing Officer made a unilateral choice to disregard previous statements, even if the contents were not changed. Caution interviews should be tendered in Court as is given by an accused person without alterations, amendments or in this case by disregarding previous pages. This practice is unfair and unacceptable. This Court is mindful that while voluntariness is established, this court has discretion to exclude a confession or an admission on the ground of unfairness (R v Sang [1979] UKHL 3; [1980] AC 402).

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

Chaitanya Lakshman
RESIDENT MAGISTRATE

18th February 2013