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State v Navuka - Ruling on Voir Dire [2014] FJMC 90; Criminal 2281.2010 (26 May 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 2281/2010

STATE

v.

FILIPE NAVUKA

Cpl Josuha for the Prosecution
The accused in person

Date of Hearing: 26/05/2014
Date of Ruling : 26/05/2014

RULING ON VOIR DIRE

[1] The accused is charged with one count of Theft contrary to section 291(1) of the Crimes Decree No 44 of 2009.

[2] The accused had made admissions in his caution statement dated 29th December 2010 and now he is challenging the admissibility of that in this Court.

[3] The basis for his objection was that was he assaulted and threatened by the police officers and because of that he admitted the offence.

[4] A voir dire hearing was conducted on 26th May 2014 in which the prosecution called the interviewing officer whilst the accused gave evidence for the defence .

[5] PW1 was DC 3477 Kepati who conducted the caution interview of the accused. He gave the accused all his rights and he did not assault or threatened the accused before or during the interview . There were no others present apart from him and the accused during the interview and the accused did not complain about anything during the interview.

[6] The accused in his evidence said he was assaulted before the interview by plain clothed police officers and because of that he admitted the offence. In cross- examination he admitted that he did not complain about that to the interviewing officer and only informed the Court nearly after one year after he was first produced to the Court.

[7] Now I would briefly consider the relevant law principles in this kind of application.

[8] The basic control over admissibility of statement was discussed in the judgment of Lord Hailsham of Marylebone in the decision of the Privy Council in Wong Kam-Ming v. The Queen (1982) A.C 247 at 261 (as cited in the Fiji High Court case of State v. Rokotuiwai – ruling on voir dire [1996] FJHC; HAC009r.95s (21 November 1996),

"The basic controls over admissibility of statement are found in the evidential rule that an admission must be voluntary i.e. not obtained through violence, fear or prejudice, oppression, threats and promises or other improper inducements. See decision of LORD SUMNER in IBRAHIM v. R [1914] UKPC 16; (1914-15) AER 874 at 877. It is to the evidence that the court must for an answer to the voluntariness of the confessions".

[9]This rule was also strongly emphasized in the Fiji Court of Appeal case of Shiu Charan v. R (F.C.A., Crim. App. 46.83),

"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 (194) 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 a 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".

[10] Madame Justice Shameem succinctly stated in State v. Rokotuiwai (supra) at pg. 4,
"It is for the prosecution to prove beyond reasonable doubt that the admissions are voluntary. I remind myself of that...It is essentially a matter of fact".

[11] 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.'

[12] I have considered the evidence presented by both parties in this hearing. From these I am satisfied about the version presented by the prosecution. I also considered the time the accused took in to informing about the Court about these allegations as well as the demeanor of parties which favor prosecution.

[13] Based on the reasons mentioned above I am satisfied that the State has managed to prove beyond reasonable doubt that the accused gave his caution statement voluntarily.

[14] Therefore I decide that the caution statement of the accused is admissible in the trial proper.

H.S.P .Somaratne
Resident Magistrate