IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 021 OF 2010

BETWEEN:

STATE

AND:

KINIVILIAME RAOVUNA

Counsel: Mr. M. Kaisamy for the State
 Mr. T. Lee (L.A.C) for Accused

Date of Hearing: 7 February 2011
Date of Ruling: 7 February 2011

VOIR DIRE RULING

1. The State seeks to adduce into evidence the interview conducted under caution with this accused on the 30th May 2010 at the Seaqaqa Police Station wherein he gave incriminating answers to questions regarding a rape.

2. The accused objects to the admissibility of the interview on the grounds that:

1. He was in fear of being assaulted by Police Officers.

2. When in the cell, he was threatened by a Police Constable that he would be punched up.

3. Another officer entered the cell and threatened to slap him.

3. All of these threats were made before the statement started and each officer making the threats was identified by the accused prior to these proceedings.

4. The test in assessing whether an interview is admissible in evidence is whether it was made voluntarily or not, obtained without oppression or unfairness and not obtained in breach of the suspects 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 though out. 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.

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

6. The prosecution called a team of 6 police officers from the Seaqaqa Police Station to give evidence as to the events in the station on the 30th day of May 2010. The accused was brought into the station that day by his uncle, and searched and locked into a cell at the station. At 1620h that day an interview under caution commenced with the accused, the interviewing officer being DC 3033 Nacanieli. He gave evidence as to the willingness of the accused and of how he afforded him all of his rights. He strenuously denied threatening the accused in the morning before the interview. The interview was suspended for dinner and rest at 2010h and resumed, with a remind caution, at 0820hrs the following day until it was concluded at 0930h that day. It was not read back to the accused at his request and it was signed on each page by the interviewer and by the accused. 

7. Other officers gave evidence as to the treatment of the accused in the station that day and of his charge statement that was made the following day and all denied that there had been threats made or improprieties extended to the accused.

ANALYSIS

8. I find the evidence of the Police Officers to be consistent, responsible and reliable. In contrast I did not believe the evidence of the accused at all in respect of what he says are threats made to him by at least two of the officers. I am conscious of the burden placed upon the Prosecution and while the accused does not have to prove anything to the Court, I am satisfied that the prosecution has discharged the burden upon them. 

9. It is not in the accused's favor that no complaint was made to anybody from the time of the interview until January (last month) when he says he told his father and then his legal adviser. He had made many appearances in Court and never raised the issue. His allegations smack of recent invention, there being no other evidence to support his claims.

10. The transcript of the interview itself is helpful in these proceedings where he appears to be freely answering questions and in particular at the end of the interview he asks for forgiveness, a strong sign of a voluntary statement.

11. I have no hesitation in finding that both the interview and the charge statement were voluntarily made and there is nothing oppressive or unfair about them that would encourage me to exercise my discretion to exclude them in evidence. They may be led by the State in the trial proper.

P.K. Madigan
Judge

At Labasa
7 February 2011