State v King - Voire Dire Ruling [2011] FJHC 615; HAC40.2010L (4 October 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No: HAC40 of 2010L

BETWEEN:

STATE

AND:

JOE KING
(First accused)

SANJEEV MOHAN
(Second accused)

Mr T Qalanauci for the State
Ms V Tamanisau (LAC) for the first accused
Mr H. A Shah with Mr M. L. Degei for the second accused

Date of Hearing : 3rd October, 2011
Date of Ruling : 4th October, 2011

VOIR DIRE RULING

[1] The State seeks to adduce into evidence an interview conducted by each of the accused under caution on the 1st May 2010 and 6th May 2010 respectively at the Lautoka Police Station wherein each gave incriminating answers to questions regarding aggravated robbery.

[2] The first accused objects to the admissibility of his interview on the grounds that:

(i) He gave details of an alibi, but the Police did not listen;

(ii) While in custody at the Police Station he was subjected to force, duress and pressure;

(iii) He was made to lie on the floor and his mouth was tied with a piece of cloth;

(iv) He was physically assaulted on his leg.

[3] The second accused gave more general grounds of assault and of the abusive use of chillies on his body.

[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 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 the State 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.

[5] 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.

[6] In the case for the prosecution the State called four Police witnesses from the Police Station at Lautoka. D Corp Simione first apprehended the first accused near the Natakowaqa Police Post at 6.20am on the 30th April 2010 where he was on duty as the sole charge officer. It was arranged for the first accused to be sent on to the Lautoka Police Station. Simione denied that anything improper happened on arrest and said that the first accused was drunk at the time.

[7] DPC Silio assisted Simione in the arrest and accompanied the first accused back to Lautoka where he subsequently interviewed him under caution. He

never did anything nor saw anything improper done to the first accused at the time of arrest. At the station, he interviewed the first accused from 1030 to 1435 hours on May 1st 2010 with DPC Baseisei as a witnessing officer. He offered no inducements, nor promises to the accused. There were no assaults that he did or saw. The interview included a reconstruction visit where again there were no improprieties towards the first accused. There were no complaints then or subsequently from the first accused.

[8] DPC Silio was also the witnessing officer to the cautioned interview of the second accused on the 6th May 2010. He says that during that interview the second accused's wife and child visited him and the interview was suspended while he was given time to talk to his wife. He attested that there were no assaults threats or promises during the time he was a witness to the interview and the second accused was under no pressure to make admissions.

[9] DPC Baseisei arrested the second accused at a dwelling house in Lautoka in the early hours of May 6, 2010. Nothing improper happened at the time of the arrest. He was in addition the witness to the cautioned interview with the first accused. He denied that anything improper in the way of assaults or inducements occurred against the first accused, neither during interview nor during the reconstruction.

[10] The fourth and final witness for the voir dire proceedings was DPC Bimlesh who was the interviewing officer of the second accused on the 6th May 2010. He told of the second accused's wife's visit after which the accused became much more co-operative. He too said that there were no assaults, threats, promises or inducements made to the second accused.

[11] Both accused gave evidence in the voir dire proceedings. The first accused, Joe King, said that on his arrest he was roughly "man-handled" by the Police before being taken to Lautoka Police Station. In the morning of May

1st, he was taken from his cell and questioned about a robbery. He told the Police he had been drinking grog at a birthday party but they said - no, you and Mohan and Labalaba were seen at Wairabetia and didn't believe his alibi. He was handcuffed and made to lie face down on a rug while one unknown "black" policeman stood on his back, lifting his leg forcing his face into the rug. He was in this position for the entire interview until he was forced to sign at the end. He denied that his answers were voluntary and said that the answers in the interview were fabricated by the officers. He has a scar on his right forehead which he says was a result of his face being forced into the rug. He finished his evidence by giving a "warning" to all that the Police now are using "yoga" style assaults that cannot be detected; although he never claimed he was the victim of such "innovations". He was not able to complain to a Magistrate or Judge about his treatment, because he was never given the opportunity.

[12] The second accused gave evidence of his interview on the 6th May 2010. Prior to the interview he had been told that the first accused had already confessed and told them of his (the second accused) involvement. After a few questions his wife arrived to visit him and he was allowed to talk to her but it was in a general Police office with 6 to 7 officers working at their desks. In front of his wife he was told that if he wanted to be released he should co-operate and his wife was told to encourage him to confess it all. As soon as his wife left, a "Fijian policeman" (not a witness in this voir dire) took him to another room where there were two other officers present. He was ordered to completely undress, he was handcuffed behind his back and chillies were rubbed on his anus, eyes and penis. One officer then squeezed his testicles. They said they would not stop until he confessed. He was in pain and decided that he would do anything to stop the assault. He dressed and was taken to resume the interview process. He was in fear and in pain and for those reasons he answered the questions as he did in the interview.

Analysis

[13] I find that the evidence of the four Police Officers to be plausible, honest and consistent. Any discrepancies disclosed as to entries in the Station Diary or in the cell books are minor and of no import to the allegations of impropriety. While the accused do not have to prove anything, the burden of proof being on the prosecution throughout, I find that the evidence of each accused is exaggerated and implausible.

[14] The first accused in his objections filed complaints of force prior to being taken to Wairabetia for reconstruction. He gave no evidence of such, but instead told of being treated badly on arrest which was not part of his objections. His complaint of alibi not being taken into account must go to the general issue and not this inquiry. His evidence of assault during the taking of his cautioned interview is unbelievable. One wonders why the Police would hold a suspect in such an oppressive hold during the whole interview without even testing to see if voluntary answers were forthcoming. His demonstration in Court of his being pinned to the floor during interview was inconsistent with the injury which he says he sustained and I don't believe that the scar he showed me would be a rug injury sustained some 18 months earlier. His allegation of fabrication of the answers was made for the first time in Court, it not having been made in his objections to admissibility, nor at any other time. Fabrication was certainly not something put to the witnesses to comment on. Moreover, there was no evidence whatsoever regarding the piece of cloth or the assault to his leg.

[15] I am satisfied beyond reasonable doubt that the first accused was not treated in the manner in which he claims, that the interview was obtained fairly and that the answers he gave to questions were given voluntarily. It is admissible as evidence in his trial.

[16] The second accused relies mainly on pressure on his wife to encourage him to confess and secondly on the assaults he received when naked after his wife left. Whatever police do to the wife by way of inducements or promise cannot be relevant to the enquiry: she is not a suspect and she is not being questioned. I find that it is more than likely that the wife did persuade the second accused to "come clean", but not necessarily at the behest of the Police. I do not believe the second accused's evidence of his assaults with chillies while naked. It was not an allegation made or rerecorded anywhere else before trial. I find beyond reasonable doubt that the second accused's interview was obtained voluntarily and it too is admissible in evidence.

P.K. Madigan
JUDGE

At Lautoka
4th October 2011