State v Vunisa [2011] FJHC 149; HAC42.2010 (22 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 42 OF 2010

STATE

V

APIMELEKI VUNISA

Mr. L. Sovau for the State
Accused in Person

Date of Hearing: 21 February 2011
Date of Ruling: 22 February 2011

VOIR DIRE RULING

[1] The accused objects to the admissibility of a cautioned interview made on the 23rd April 2010 at Lautoka Police Station, on the basis that it was not voluntarily made but induced by threats. The oral grounds on which he initially challenged the admissibility are:

1. That he was blindfolded.
   
2. That he was threatened to be beaten with a stick.
   
3. That the answers to questions are untrue because he was "scared".
   

[2] The test for the admissibility of statements made by an accused to persons in authority is whether they were voluntary, obtained without oppression or unfairness, or in breach of any constitutional (now read common law) rights. The burden of proving voluntariness, fairness, lack of oppression and observance of common law rights rests on the prosecution and all matters must be proved beyond reasonable doubt. I have kept these tests and the burden uppermost in my mind in deciding upon this issue.

[3] Evidence of threats of violence, if accepted by the Court, is sufficient to raise a reasonable doubt as to voluntariness. If what the accused says is true, it would create an oppressive climate of fear.

[4] In the voir dire, the prosecution called five police witnesses who told of arresting the accused on the 23rd April 2010. The officers all give evidence under oath and told the Courts how the accused was "normal" and co-operative and all strenuously denied any blindfolding, or threats with sticks or any threats whatsoever.

[5] The accused gave evidence under oath in his defence in the trial within a trial. He gave evidence of being taken into a small room by two of the officers, one who was holding a stick, of being blindfolded and threatened by one PC Josiah that if he did not admit he would beaten with the stick. He then suddenly "remembered" that the two officers then punched him in the ribs, a complaint never raised before and a claim never put to the officers.

[6] The police evidence I found to be consistent, honest and compelling. Each of the witnesses appeared to be taken aback by the suggestion that there were threats made to the accused. In contrast, the evidence of the accused was erratic, unconvincing and clearly contrived. While the accused does not have to prove anything, I found that I preferred the prosecution evidence and in so doing found that the caution interview was clearly voluntarily conducted and therefore is admissible in evidence in the trial proper.

Paul K. Madigan
Judge

At Lautoka
22 February 2011