State v Kaulawe [2011] FJHC 331; HAC073.2008 (2 June 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 073 OF 2008

STATE

vs

1. TEVITA KAULAWE
2. KALIVATI TABUA
3. NIKOTIMO RATUMAINABUKELEVU
4. MISIWENI VULAMI
   

Mr. S. Qica for the State
Accused in Person

Date of Hearing : 01 June 2011
Date of Judgment: 02 June 2011

VOIR DIRE RULING

[1] The State seeks to adduce into evidence one caution interview and one answer to charge by each of the first and third accused.

[2] The first and third accused object to the admissibility of their cautioned interviews and charge statements.

[3] The first accused complains of threats and punches which he says forced him to conduct the interview and give incriminating answers.

[4] The third accused makes no complaint of assault but submits that he was threatened with assault which made him fearful.

[5] The test in assessing whether an interview is admissible in evidence is whether it was made voluntarily or not, obtained without oppression of unfairness and not obtained in breach of the suspect's constitutional (now read common law) rights. The burden of proving that the statement was obtained voluntarily without oppression or unfairness and in accordance with common law rights is on the prosecution and that burden remains on them throughout. The standard is of course beyond reasonable doubt. I have kept these tests and the burden uppermost in my mind in deciding on this application by the State.

[6] Evidence of threats if I find them proved, amount to an attack on the voluntariness of the statement in that the threats would sap the will of the accused, and render his participation as unwilling.

[7] The prosecution called a team of police officers from the Lautoka Police Station who gave evidence as to the arrest and subsequent interviews with the two accused on the 19th and 20th May 2008. The first accused was arrested in a house behind his local church and the third accused at his family home in Shiu Raj Road. The first accused was said to be co-operative and otherwise of normal disposition. The third accused on arrest was said to be "relaxed and quiet". Both arresting officers denied assault or any other improprieties. The interviewing officer of the first accused (Apole) gave evidence that all of his rights were afforded to him and that all of the answers were given of his own free will. No improprieties occurred. Apole also formally charged the third accused. He fully understood the process and gave his answers voluntarily. PC Tobia interviewed the third accused under caution. He explained his rights. The answers were freely and voluntarily given. No assaults or threats were occasioned to him. DC Baseisei formally cautioned the first accused. The first accused answered of his own free will and there were no such thing as assault or threats.

[8] The first accused elected to give sworn evidence. He said (briefly) that he was continuously assaulted by two unknown officers in the vehicle taking him from his place of arrest to the Lautoka Station. They punched his ribs. Because of that he admitted the offence. He admitted he never complained to anybody, nor did he go to hospital.

ANALYSIS

[9] The police who gave evidence were consistent, responsible and reliable. In contrast I did not believe the evidence of the first accused at all, in respect of the punches. He has never voiced complaints of that sort before. While I am aware that the accused does not have to prove anything, I am satisfied beyond reasonable doubt that the prosecution has discharged the burden upon them.

[10] The third accused gave no evidence of any impropriety and while it is of course his right to remain silent, there is no evidence to detract from what the officers have told me.

[11] The very demeanour of the first accused in the interview and the charge belies involuntariness. He asks for forgiveness and apologizes, which are obvious indications of his co-operating state of mind.

[12] I have no hesitation in finding that both the interview and the charge statements were voluntarily made and there is nothing unfair or oppressive about them that would encourage me to exercise my discretion to exclude them in evidence. All four statements may be led in evidence by the State in the main trial.

[13] The fourth accused being at large is not here to object to his caution interview being admitted into evidence. That interview can also be led in evidence in his absence.

Paul K. Madigan
JUDGE
At Lautoka
2 June 2011