State v Nawaqalevu [2011] FJHC 367; HAC025.2010 (29 June 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 025 OF 2010

BETWEEN:

STATE

AND:

1. ESIRA NAWAQALEVU

2. WAISALE MOIERE
3. TOA TURAGACATI
   

Counsel: Mr. M Kaisamy - for the State
Mr. S Waqainabete - for 1st Accused
2nd & 3rd Accused in Person

Date of Hearing: 27th & 29th June 2011
Date of Ruling: 29th June 2011

RULING ON VOIR DIRE

1. All three Accused persons above named were charged with Murder and Robbery with Violence.

2. State seeks to adduce the statements made by the 1st, 2nd and 3rd Accused persons in the cautioned interview.

3. 1st and the 3rd Accused persons informed Court that they are not objecting the said evidence being produced in Court.

4. The 2nd Accused objects to the said statement produced in evidence against him. He submitted that the statement was obtained by force and intoxication.

5. This inquiry is held to see the voluntariness of the said statement.

6. State called 3 police officers to give evidence, the 2nd accused opted to give evidence on his behalf.

7. 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 advantages – which has been picturesquely described as "the flattery of hope or the tyranny of fear" Ibrahim v R (1914) AC 599; DPP v Ping Lin (1976) AC 574.

8. Secondly even if such voluntariness is established there is also a 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) AC 402, 436 CE). This is a matter of overriding discretion and one cannot specifically categorize the matters which might be taken into account."

9. 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. Secondly if I find that there has been oppression or unfairness, then I can in my discretion exclude the interview. Finally, if his rights under the Constitution or common law 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 such rights as having a legal representative of his choice and having access to family, next-of-kin or a religious counsellor.

10. The burden of proving voluntariness, fairness, lack of oppression, compliance with common law rights, 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.

11. The above position was accepted by his Lordship Justice Madigan in State v Emmanuel Naigam and Ranita Devi; HAC 12 of 2009.

12. The 2nd Accused initially informed the Court that he had been threatened by a police office named Savou. When the case proceeded he changed his allegations differently.

13. State called DC 3035 Tevita Savou. He was the charging officer. He said he charged the 2nd Accused on 3rd January 2010, and recorded a statement on the same day. It was in Fijian language, a translation was submitted to Court. According to the witness the 2nd Accused was given his legal rights and he was explained of his charge. After he understood, a statement was recorded to that effect.

14. Question and Answer in the original statement was read in Court and finds that there are discrepancies in the translation.

15. The witness giving evidence on oath submitted that he had never assaulted the 2nd Accused at anytime, further he had not seen anyone assaulting or threatening the 2nd Accused at anytime.

16. Witness told Court that when he charged the 2nd Accused there were 3 police officers namely PC 2707 Seni Ranuka, 3173 Jimione and Investigating Officer DC 2089 Phul Singh were in the room attending their work.

17. According to this witness the 2nd Accused had co-operated with the investigation and the charging.

18. The 2nd Accused was explained of the procedures of cross examination. He opted to cross examine this witness.

19. The 2nd Accused suggested to the witness that the answers stated there, was not given by him and it was introduced by the police, witness vehemently denied the proposition and said he recorded what the 2nd Accused told him.

20. The 2nd Accused suggested that on the 03/01/2010, he was given home brew, and forced him to drink, when he got drunk police recorded the charge statement. Witness denied the suggestion.

21. State called PC 2089 Phul Singh. He was the Investigation Officer (I/O) in this case. He said the 2nd Accused was charged on 03/01/2010 and a statement was recorded on the same date. He said that upto now, the 2nd Accused had not complaint to anyone.

22. Jimione Waqalala was called as next witness by the prosecution. He was the Witnessing Officer and he had recorded two statements of the 2nd Accused. One at Nabouwalu Police Station and the other one was at the remand prison of Vaturekuka, Labasa. Both statements was recorded in English. According to these witnesses, the 2nd Accused understood the language and his rights. 1st statement was recorded from 31/12/2009 to 3rd January 2010. The 2nd statement was recorded on 08/02/2010 after the death of the deceased Joeli Racawa.

23. The witness submitted he had not used any force, threat or trick on the 2nd accused. The 2nd Accused made the statement voluntarily.

24. The 2nd Accused Waisale Moiere opted to give evidence on his behalf, he said the police officers made him to drink homebrew (locally manufactured illicit liquor) and recorded his statement.

25. It is noted that he had not put this position to the police officer who recorded his statement.

26. I perused both statements made by the 2nd accused to the police. Considering the nature of information given for a period of 4 days and another day, I do not think that statement was given under the influence of liquor.

27. The 2nd Accused made a statement after he was charged (charging statement). Carefully considering the statement it appears that corroborates certain portion of the 1st statement. The 2nd Accused categorically said in Court that he made the cautioned interview statement voluntarily. He only challenges the charging statements.

28. The 2nd Accused had made his statement from 31/12/2009 to 3/1/2010, 2nd statement on 8/2/2010. He had not complaint to anyone including the Magistrate or this Court upto date.

29. Considering all materials before the Court, this Court is of the view that the statements made at the caution interviews and charging sessions were made voluntarily. Therefore the prosecution may adduce as evidence in the trial proper.

........................................
S. Thurairaja
JUDGE

At Labasa
29 June 2011