State v Jione [2005] FJHC 445; HAC0022D.2003S (19 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC0022 of 2003S

STATE

v.

FORATE EPINISI JIONE

Hearing: 18th October 2005
Ruling: 19th October 2005

Counsel: Mr. A. Ravindra-Singh for State
Accused in Person

RULING

The Accused objects to the admission of the interview records conducted by the Westpac Bank between the 21^st of August 1997 and the 29^th of August 1997. He has no real objection to the use of photocopies in the absence of original records, but says that the interviews were obtained by threats and oppression. He says that the interviews were not taken voluntarily.

The interviewing officer for each interview was Gregory Andrew Lemme, Manager Investigations with the Westpac Banking Corporation, Australia. There is no dispute that he was a person in authority in relation to the Accused.

The test for admissibility for all interviews taken by a person in authority, is that they must be voluntary, taken without oppression, fear of prejudice or hope of advantage, and must have been fairly obtained. The burden of proving admissibility is on the prosecution, and lack of oppression, voluntariness, and fairness must be proven beyond reasonable doubt.

A trial within a trial was held to determine admissibility. Gregory Andrew Lemme gave evidence that he conducted 6 interviews between the 21^st and the 29^th of August 1997 in the Westpac Boardroom Suva. In each interview the Accused was invited to request any other person to be present during the interview, but he declined. The interviews contained admissions as to the misappropriation of funds held in various accounts at Westpac, and the falsification of accounts. The interviews also contain admissions as to the way in which the appropriated money was spent. Each interview has a corresponding “Adoption Record of Interview.” That record, signed before another senior bank executive, certified that the answers given were the truth, they were given of the Accused’s own free will and that he had no complaints.

In his cross-examination of this witness, the Accused suggested that the witness had humiliated him during the interviews, and that he had been present when the Adoption Records had been signed. He also suggested that the witness had used false and fabricated documents to show him during the interview. These suggestions were denied by the witness.

The prosecution also called the Investigating Officer, Constable Dharmendra Prasad. He gave evidence that he was appointed the second investigating officer and that he discovered, in 2005 that the original records of interview were missing. He conducted a thorough search of the Nabua Police Station but was unable to find the original documents. However, accurate and authentic copies of the interviews had been made previously and were on the police file until they were tendered in court. He said he was able to vouch for their authenticity.

Although the Accused asked this witness if the copies had been tampered with, in answer to my questions, he said that the copies in court were a true copy of the original and that he had signed each record of interview.

The Accused made an unsworn statement in which he said he was threatened by Westpac Officers, Krishna Datt and Harry Solomon before the interview. The nature of the threat was that he should not discuss the case with anyone. He said that Gregory Lemme manipulated the interviews “to make him look guilty” and that he verbally abused him by making racist and rude remarks. He said he asked for legal advice but no such right was accorded him. He was terminated a day before he was due to be made redundant. He was then harassed again by Westpac staff.

Before photocopies of documents can be tendered in evidence, the prosecution must prove that the original existed, that it would have been admissible in itself, that the copy is an accurate one, that the original is lost or destroyed and that a diligent search was made for it. (Goudie J in Reg. v. Vincent Lobendhan (1972) 17 FLR 1). The prosecution has satisfied me beyond reasonable doubt of all these matters. Both the Accused and Gregory Lemme vouch for the accuracy of the copies. Constable Prasad states that the originals were in the custody of the police at Nabua Police Station, but that they cannot be found. He searched for them thoroughly but was unable to find them.

The test for admissibility of the photocopies is satisfied.

As for voluntariness, I accept the sworn evidence of Gregory Lemme that the interviews were obtained fairly, voluntarily and without oppression. I accept that the Accused, who had ample opportunity to seek legal advice, and to have present a legal representative, declined to exercise that right. Although Gregory Lemme did not specifically advise the Accused of his right to counsel, the Accused was clearly aware of it because he says that he requested the services of counsel. Over the 8 days of interview, he was not in custody, and was free to go home daily, and, if he wished, to take legal advice. I accept that after each interview he signed “Adoption Records” which certified the voluntariness of the interviews. I do not accept that the Accused was threatened, humiliated or shamed into making his confessions.

The interviews may be led in evidence. What weight is to be put on them is a matter for the assessors.

Nazhat Shameem
JUDGE

At Suva
19th October 2005