State v Naturu [2010] FJHC 235; HAC004.2010 (7 July 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 004 OF 2010

STATE

V

1. WAISALE NATURU
2. RONALD RITESH CHAND
   

Mr. T. Qalinauci for the State
Both Accused in Person

Date of Hearing: 6 July 2010
Date of Ruling: 7July 2010

VOIR DIRE RULING

[1] The State is seeking to adduce into evidence at the substantive trial, one interview conducted under caution with the second accused on the 1st March 2007 which contains admissions to the charge of cultivating Indian Hemp that the accused is facing.

[2] The accused objects to its admissibility on the grounds of assaults during the interview. When I asked for further and better particulars of the assaults, the accused advised me that he had been assaulted by officers who punched him on the head and hit him with a stick. They also put chillies on his private parts and eyes. He further said that incriminatory parts of the cautioned interview had been fabricated by the statement taker.

The Legal Tests

[3] The Fiji Court of Appeal in Ganga Ram and Shiu Charan v R 1983 (unreported) outlined the two-part test for the exclusion of confessions at p.8:

"It will be remembered that there are two matters each of which requires consideration in this area. First, it must be established affirmatively by the Crown (sic) 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 of prejudice or inducement by offer of some advantage – which has been picturesquely described as "the flattery of hope or the tyranny of fear" Ibrahim v R (1914) A.C. 599; DPP v Ping Lin (1976) A.C. 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 police behaved, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. (R v Sanag [1979] UKHL 3; (1980) A.C. 402, 436CE). This is a matter of overriding discretion and one cannot specifically categorise the matters which might be taken into account."

[4] It is for me to decide therefore whether this interview was conducted freely and not as a result of threats, assaults or inducements made to the accused by a person or persons in authority [in this case obviously the Police]. Secondly, if I find that there has been oppression or unfairness, then I can in my discretion exclude the interview. Finally, if his common law rights have been breached, then that will lead to exclusion of the confessions obtained thereby, unless the Prosecution can show that the suspect was not thereby prejudiced. These rights include the right (i) to have a legal representative of his choice and (ii) have access to family or next-of-kin.

[5] The burden of proving voluntariness, fairness, lack of oppression, compliance with the Constitution, where applicable, and (if there is non-compliance) lack of prejudice to the suspect, rests at all times with the prosecution. They must prove these matters beyond reasonable doubt. In this ruling I have reminded myself of that.

The Facts

[6] Police Officers from Keiyasi Police Station gave evidence for the prosecution that on the 1st March 2007 a Ratu Simione brought the second accused into the Keiyasi Police Station because he was too scared to come alone. After the relevant journals were marked, he was placed in a cell at the station. The interviewing officer gave evidence that the accused was taken from the cell and interviewed in the presence of one witness, a Police Constable Taniuvu. The interview was conducted in the Fijian language at the choice of the accused (who is Indo-Fijian) and he freely answered the questions. There were no assaults or threats and the accused was afforded all of his rights.

[7] The accused gave sworn evidence. He said that he was taken into the interview room where he was assaulted. Everything was written in the statement and he was forced to sign. They made up all of the answers. He was punched on the ribs, on the back and on the top of his head. Chillies were applied to his anus and to his sexual organs. He was not taken for medical treatment and he was thereafter detained at Sigatoka Police Station.

Analysis

[8] I find that the evidence of the Police Officers is consistent and responsible. In contrast the evidence of the accused is so inherently implausible that it would be unsafe to rely upon it. When the accused gave evidence he never mentioned the stick and when the Court reminded him that at an earlier hearing he spoke of chillies in the eyes, he said that he forgot it in his evidence. He was most general about the assaults, and declined to give any detail. He told me that there were three witnesses to the caution interview, all of whom assaulted him and all who signed the interview paper. It is quite clear that there was only one witness to the interview who did indeed sign along with the statement taker. It is non-sensical that the answers given in the interview could be made up by the Police. They are rather specific answers and contain detail that could not possibly be known to the Police. Whilst I am ever mindful of the burden and standard of proof that is on the State, the evidence of the accused is such that it cannot be believed and does nothing to detract from the solidarity of the State’s witnesses. I reject the allegations of the accused and prefer the evidence of the Police Officers. There is absolutely no record of complaint, including in the Magistrates Court and the first complaint made was when I asked him specifically if there was to be a challenge to the caution interview.

[9] Accordingly I have come to the view that in regard to any allegation of assault by the Police the State has satisfied me beyond reasonable doubt that it did not happen. I am satisfied that the interview was voluntary, that it was obtained in fair circumstances, that it was in no way oppressed or beaten out of this accused applicant in contravention of his rights either under the Judges’ Rules or of the Constitution which was then operative.

[10] The interview being voluntarily made and not created out of oppression is therefore admissible in evidence. The answer to charge contains no admissions, nor was its provenance disputed. That too is admissible of course.

Paul K. Madigan
Judge

At Lautoka
7 July 2010