Bulamaibau v The State [2004] FJHC 168; HAA0110.2004 (26 November 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA 110 OF 2004

BETWEEN:

QICA TABUA BULAMAIBAU
Appellant

AND:

STATE
Respondent

Counsel: Mr. R. Tuitoga – for the Appellant
Ms K. Bavou – for State

Hearing: 28th October, 2004
Judgment: 26th November, 2004

JUDGMENT

The appellant and two others are charged with one count of robbery with violence on 15th of March, 2000.

The case was eventually heard over the 4th of October 2001, 17th of October 2001, 23rd of October 2001 with a final conclusion on the 18th of August 2003.

The Prosecution closed its case on that last date having called five witnesses.

Appellant’s counsel did not seek to challenge the sufficiency of the prosecution case. However, nonetheless without receiving that request or any submissions the Court pre-emptorily ruled there was a case to answer and proceeded immediately to offer the appellant his three options detailed by Section 211 of the Criminal Procedure Code.

Appellant’s counsel at that point interjected with his request to make an application challenging the admissibility of the confessional statements. He did so upon the procedural basis contained in the Court of Appeal’s decision of Vinod Kumar v The State, No. AAU0024.2000.

The Court accepted that challenge and gave counsel 14 days to make his application and offered the Prosecution 14 days to reply.

At the 26th of September the defence had not served their submissions and were granted an extension of time within which to do so.

At the next appearance on the 9th of October, 2003 they had prepared and filed submissions but the Prosecution claimed they hadn’t received them. A further extension was granted to the 30th of October, 2003; on that date the Prosecution were granted the courtesy of a month within which to reply.

There followed various adjournments through to the 23rd of December, 2003. Then the Court, after considering the submissions, read out its ruling in open court. The essence of the learned Magistrate’s decision is contained at page 48 of the record:

“I agree with the prosecutor’s submission that, “.....the application by the defence to limit their sworn evidence to the circumstances surrounding the taking of the statement has come too late....the application for a voire dire should have been made by the defence at the conclusion of the prosecution’s witnesses and before a no case to answer submission and a prima facie ruling was made....” [paragraph 2.2 and 2.3].

A prima facie case ruling has been made, and the requirements of Section 211 of the Criminal Procedure Code has been explained to the accused. The time for “trial within a trial” has long expired, when the Court found a prima facie case against the accused. The defence should have made their application before then.

If the defence wishes to give a sworn statement in their defence, they are entitled to bring in evidence that challenge the voluntaryness of any confession. They may also bring in evidence that generally advance their defence. They will be cross-examined on the above matters, if the prosecution wishes to exercise its right to cross-examine.

Given the above, I dismiss the defence application, and I now call on them to exercise one of the options given to them, as required by Section 211 of the Criminal Procedure Code.”

I have detailed the history fully leading down to this ruling as that is the subject of this appeal against conviction. I am obliged to both counsel for their helpful and comprehensive written submissions.

Appellant’s Case

The appellant’s case is summed up within one passage of the Court of Appeal’s Judgment in Kumar (supra). The Court of Appeal said at page 2:

“After all witnesses for the prosecution have been called the defendant is to be given the opportunity to give evidence if he wishes exclusively on the taking of the caution statements. He can then be examined and cross-examined only on matters concerning the taking of the statement. The defendant may also call witnesses to give evidence before the Court exclusively on the taking of the caution statement. This procedure contains an important safeguard for an accused person. An accused may give evidence as to the admissibility of the statement without losing the right to make an unsworn statement from the dock or to decline to give evidence in the case generally”.

The appellant concedes that no verbal objection was taken to the confessional statement when it was tendered. However, equally it is clear through the passage of cross-examination of the principal witnesses that the accused was alleging the confession was beaten out of him.

I should observe from the record it appears as if the technical aspects of the court’s procedures at the close of the prosecution case occurred over a matter of seconds (cf page 43 and 44 of the record). As such the niceties of placement of defence counsel’s “Kumar” interjection cannot be seen as counsel resting on his laurels and forgetting to take objection. Further I infer he wanted to take objections immediately but as a matter of courtesy awaited the Court’s pronouncements before rising to its feet to take the point.

Respondent’s Reply

The respondent contends that while it accepts the impact of the Kumar decision the application by the defence was made too late. The State claims that by failing to rise to its feet a matter seconds before the Court’s pronouncement of a prima facie case the defence should be denied a Kumar hearing. As a matter of preference the State indicates that the appropriate time to have made the application would be before the caution interview was tendered in evidence and certainly before the Prosecution closed its case and a ruling given on a prima facie case.

Decision

From the outset of this prosecution it was clear that this appellant challenged the admissibility of his confessional statement. At the first call of the matter on the 15th of March, 2000 the Chief Magistrate noted (page 6 of the record) that all three had complained of injuries and required medical examination. Violence and force were the subject of examinations from both the Prosecution and the Defence of the Interviewing Officer. Accordingly, I find that the appellant and his counsel had always intended to challenge the admissibility of the confessional statement.

Kumar (supra) makes it clear that after all the witnesses for the prosecution have been called the defendant must be given the opportunity to give evidence, if he wishes, exclusively on the taking of caution statements. This then allows him the right to be examined and cross-examined only on those matters without prejudicing his right to make an unsworn statement from the dock or to decline to give evidence on the case generally.

In circumstances where it is clear that the prime defence is a challenge to the admissibility of a confessional statement the courts must in my view be vigilant to make sure that this option is put to an accused at the close of the prosecution case.

The learned Magistrate did not take that precaution here. Rather at the close of the prosecution case without the request of either counsel he went on to find a prima facie case and then chant the Section 211 Procedures. I can well imagine defence counsel as a matter of courtesy let the learned Magistrate complete what he was saying before immediately taking the Kumar objection. That is how the record on page 43 and 44 reads.

In future defence counsel would be well advised to ensure they go on the record early with their instructions to challenge the admissibility of confessional statements. However, on this occasion I am satisfied that it was clear to all involved that such a challenge was to be mounted. I am fortified in that view by the fact that the learned Magistrate entertained the application and asked counsel to file written submissions to address the matter.

I also disagree with the learned Magistrate’s ruling and the submission of State’s counsel. In my view this application was not brought too late. There was no deliberate avoidance of objection to gain some defence advantage. I find as a matter of fact that counsel was simply displaying courtesy to the Court by not interrupting the learned Magistrate as he addressed procedures during the period immediately after the prosecution announced it had closed its case.

If defence counsel had waited longer than the few seconds it apparently took for them to raise the objection then my view may have been different. However, I am satisfied that on this occasion the challenge was properly brought and the substantive issue of whether or not the confession was voluntary needs to be addressed.

Conclusion

I grant the appeal, overturn the ruling but only in so far as enabling the learned Magistrate to now consider whether or not the confessional statement was voluntary based on the evidence recorded to date. I vacate the Prosecutions advancement of “closing its case” and the finding on a prima facie case to answer. The hearing on the admissibility of the subject statement may now proceed in the usual fashion.

After the learned Magistrate has made that finding the defence should then be put to its formal election under Section 211 of the Criminal Procedure Code.

Addendum

It was apparent as a result of this appeal that there is still some confusion concerning the management of voir dire applications during hearings in the Magistrates Court. A practice note issued by the Chief Justice referred to in Kumar still applies. I note it may be wise to adopt the following practical approach to Kumar applications:

1. Defence counsel or accused seeking to challenge the admissibility of confessional statements or other evidence in Magistrates Court’s hearings should advise the State or police about the nature of the challenge at least 14 days before commencement of the hearing.
   
2. Counsel for the defence or the accused must take an objection to the production of any evidence at the time it is tendered requesting that it simply be marked for identification purposes only.
   
3. When the Prosecution indicates it has called its last witness and before closing its case defence counsel or the accused should indicate they wish to proceed with the Kumar application. The application should then be heard. If granted the Court should then hear evidence about the admissibility of the exhibit marked for identification. The accused can be given his rights to make a statement or give evidence. If the accused elects to give evidence cross-examination is limited as defined in Kumar.
   
4. The Court can rule whether or not it will admit the intended evidence.
   
5. The Prosecution can then close its case.
   
6. Section 211 procedures can follow.
   

Gerard Winter
JUDGE

At Suva
26th November, 2004