State v Maya [2011] FJHC 255; HAC 86.2009 (10 May 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 86 OF 2009

STATE

vs

NOA MAYA

Ms M. Fong for the State
Accused in Person

Date of Hearing: 10 May 2011
Date of Ruling: 10 May 2011

VOIR DIRE RULING

[1] The State seeks to adduce into evidence at trial a caution interview conducted with the accused on the 23rd September 2007, along with an answer to charge made on the same date.

[2] The accused objects to their production on the basis of serious assaults within the Police Station which assaults he claims sapped his will and forced him to make admissions in fear of further assault.

[3] The test for the admissibility of statements made by the accused to persons in authority is whether they were voluntary, obtained without oppression or unfairness and breach of his common law rights. The burden of proving voluntariness, fairness, lack of oppression and observance of fundamental rights rests on the prosecution and all matters must be proved beyond reasonable doubt. Evidence of assault, accepted by the Court would be sufficient to raise a reasonable doubt as to voluntariness.

[4] Where there are common law rights (previously enshrined in the Constitution) it is for the prosecution to prove that those breaches did not prejudice the accused's rights in custody. Because he is unrepresented I have considered the possibility of breaches of his rights in addition to his allegations of assault.

[5] In the voir dire, the prosecution called seven prosecution witnesses all of whom were at the time based in the Lautoka Police Station. Inspector Suliasi Ratu told of the arrest of the accused at a house at Natokowaqa at 6.00am on the 21st September 2007; acting on information. The accused was escorted from that house where he was "logged in", searched and locked in a cell. He was co-operative and not assaulted by any officer. PC Naicker was the interviewing officer who conducted the interview on the 23rd September 2007 with no witness present. He said that there were no assaults, no injuries on the accused, nor were there any complaints. Two witnesses, called on request of the accused, denied assaulting him by kicks or stomping, or abusing him in any manner.

[6] The accused elected to remain silent.

[7] I find that the evidence of the Police Officers was consistent and compelling. I accept their evidence that there was no assault of the accused either on his arrest or later at the Police Station. I accept that the accused was treated at all times in a fair and professional manner.

[8] The accused gave no evidence to the Court of assault, oppression or breach of fundamental rights. I am as a result left with the evidence of the Police Officers, and nothing to contradict it.

[9] The fact that there was no witness at the interview of the accused is not fatal to its admissibility. Witnesses are present to the advantage of the prosecution, should the main interviewing officer not be able to produce the record of interview and the lack of a witness is not prejudicial to the accused. I accept the evidence of the officer who conducted the interview that he did so professionally and appropriately and that it was his choice in the circumstances to proceed without a witness.

[10] I am satisfied beyond reasonable doubt that the confession and the charge statement were both voluntarily and fairly obtained. They may be led in evidence.

Paul K. Madigan
JUDGE

At Lautoka
10 May 2011