IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.0023 OF 1996

THE STATE

V

MICHAEL JAMES MATUFUNA

Counsel: Mr.K.Tunidau and Mr.P.Petaia for the State
Accused in person

Voir dire 
Hearing: 28th and 29th October 1997

Decision: 29th October 1997

ORAL DECISION OF PAIN J ON
ADMISSIBILITY OF CAUTION STATEMENT

In this case the Accused has objected to the admissibility of the caution statement taken by Corporal Low. I have heard evidence on a voir dire.

It is not necessary for me to review the legal principles that have been enunciated in such cases as Ibrahim v King 1914 AC 599; DPP v Ping Ling 1976 AC 574; R v Rennie 1982 74 Cr. App. R 207; R V Prager 1972 58 Cr. App. R. 151 and the Fiji Court of Appeal decision Alifereti Naqiri v State Cr.App.11 of 1993. Suffice it to say that the onus is on the prosecution to prove beyond reasonable doubt that the statement made by the accused was voluntary. In the context of this case, that means proof that it was not obtained by oppression exerted upon the accused. Oppression can take many forms such as violence, threats, compulsion, intimidation, undue pressure or oppressive questioning. Such conduct would amount to oppression if it "tends to sap, and has sapped, that free will which must exist before a confession is voluntary". (R v Priestley (1965) 51 Cr. App. R 1). For a statement to be voluntary, it must be proved that the will of the accused was not overborne by some other person when he made it.

The Accused has given evidence that he was taken to the Samabula Police Station and placed in a cell. He said that was about 10.30 a.m. He said that after about half an hour Const. Epeli entered the cell. He carried a length of rope and a screwdriver that had been used by the offender in the commission of the alleged offence.

The Accused said that Const. Epeli asked him if these items were used by the Accused. The Accused said he did not do anything. Const. Epeli then used the rope to tie the Accused’s hands behind his back. The Accused says that Const. Epeli then whipped the Accused with the other end of the rope.

The Accused says that, after Const. Epeli had been in the cell for about 5 minutes, he then took the Accused upstairs to a small room next to the interview room. Three other officers were in that room. He said that Const. Vilitaki undid the rope from his hands. He then put the rope around the Accused’s neck and pulled it. While he was doing this Const. Jim hit the Accused on the knee with a piece of wood. Const. Low then took a brief case and bashed his head with it. The Accused said that he was in the room for about an hour. He could not take the pain any more so he said that he had committed the offence.

He was then taken into the interview room and interviewed under caution by Const. Low. He cannot recall the questions that were asked but he answered them.

The prosecution called Const. Low. He said that he remained at the scene of the offence and did not return to the Police Station with the Accused. He took a statement from the victim between 12 noon and 12.30 p.m. This is verified by the evidence of the victim and the times recorded in her Statement. Const. Low said that he then remained talking with the victim and the house owner. The house owner then drove him to the Police Station and he did not arrive there until after 1 p.m.

Const. Low said that he took the Accused from the cell to the interview room. He verbally interviewed the Accused who admitted the offence. Const. Low said he would then have proceeded with the formal interview but the Accused requested to have lunch. The Accused was taken back to the cell and given lunch. This took about half an hour. Const. Low then took him back to the interview room and interviewed him under caution. That commenced at 3.25 p.m. and concluded at 5.30 p.m. Const. Low denied the allegations of the Accused and said that no violence was used by him or any other Police Officer. He said that the Accused voluntarily gave his statement.

Const. Naidu said in evidence that he charged the Accused after having read the caution statement. He said that the Accused voluntarily made a statement in answer to the charge.

Const. Epeli gave evidence. He said that he was working a 24 hour shift that ended at 8.00 a.m. on that morning the 7th November 1995. He said that about 10 o’clock he saw the Accused in a cell. As he knew the Accused he asked him what the case was. The Accused told him it was a "breaking" case. Const. Epeli said that he did not speak to the Accused again. He signed off and went home at 11 a.m. He then went to sleep. Const. Epeli denied that he was present or took part in any assault upon the Accused at the Police Station.

There is a clear conflict of evidence between the Accused and the Police Officers. It is a stark conflict that does not give rise to possible mistake, misunderstanding or compromise. The resolution of the issue turns on credibility. I have formed a very clear view but on this voir dire hearing it is not appropriate to give comprehensive reasons on the issue of credibility. However, I should mention some independent facts and matters that I have found relevant to this issue. This is not intended as an exhaustive list of reasons.

On the times given by the Accused namely, arrival at the Police Station at about 10.30 a.m., being in the cell for half an hour, Const. Epeli being in the cell for 5 minutes and then being in the small room with the Police Officers for an hour, the interview would then have commenced shortly after 12 noon. That cannot be so. Const. Low was interviewing the victim until 12.30p.m. and did not return to the Police Station until after 1.00 p.m.

The Accused said that when he was taken into the small room and assaulted, the policemen involved were Consts. Low, Epeli, Vilitaki and Jim. I am satisfied that Const. Low had not returned to the Police Station at that particular time. On the Accused’s evidence he would have been taken to the small room shortly after 11 o’clock. Const. Low could not have been there at that time. Significantly the Accused in cross-examination put to Const. Low that the constable returned to the Police Station with the Accused in the Police van. Const. Low denied that. In evidence the Accused did not name Const. Low as being in the van that took him to the Police Station.

I also accept that Const. Epeli was not at the Police Station when the alleged assaults took place. Significantly the Accused did see him at the station earlier and he would not have been aware that the Constable had finished his shift. Furthermore, Const. Epeli was not part of this investigation team and would have no reason to be involved.

It was Const. Low who looked around the scene of the alleged crime and retrieved the screwdriver and piece of rope. He was the Investigating Officer and took custody of them. He returned to Police Station after 1.00 p.m. It is most unlikely that these items could somehow have been taken back to the Police Station and been in the possession of Const. Epeli who was not a member of the investigation team shortly after the Accused was taken to the Police Station.

I need not elaborate further. I have considered and evaluated all the evidence. I have not overlooked the evidence of the Accused and the fact that a complaint was subsequently made by him against the Police. However, I find it proved by the prosecution that this statement was made voluntarily by the Accused. Accordingly, it is admissible in evidence. It follows that the charge statement is also admissible.

Justice D.B. Pain