State v Lalagavesi [2012] FJHC 1048; HAC23.2009 (6 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO : HAC 023 of 2009

BETWEEN:

STATE
Prosecution

AND:

1. SAULA LALAGAVESI

The First Accused
(Acquitted on an application by the state on 02 March 2012)

2. HENRY HOYT

The Second Accused

Dates of Inquiry : 01-02 March 2012
Date of Order : 06 March 2012

Ms Pulekeria Low for the State
Ms Tamanisau for the First Accused
Mr H A Shah for the Second Accused

RULING ON VOIR DIRE

1. The two accused abovenamed stood charged in two counts for having committed offences of 'Robbery with Violence' punishable under Section 293 (1) (a) of the Penal Code. The offences were alleged to have been committed on 28 November 2008 according to the information dated 22 July 2009 of the Director of Public Prosecutions (DPP).
   
2. At the commencement of the trial on 01 March 2012, learned counsel for the state informed court that the case for the prosecution rested on confessional statements made by the two accused to police upon their arrest. As the two accused had challenged the admissibility of the two statements on the premise of involuntariness on the grounds urged in the two memoranda dated 07 September 2011, court proceeded with a voir dire.
   
3. Learned counsel for the state firstly placed evidence of two witnesses, Sgt. Alipate Saukawa and Detective Cpl. Ilario Belo, against the first accused. It was revealed that the first accused had suffered injuries including one below the left eye as he was arrested by police on 03 December 2008. The first accused was not submitted for treatment or medical examination. The alleged interview under caution, nevertheless, proceeded within hours after the arrest, contents of which were marked as MFI[1]-1(A) by the learned counsel in an apparent attempt to establish its voluntariness despite the evidence revealed the contrary.
   
4. However, as proceedings resumed on 02 March 2012, learned counsel for the state informed court that she would 'offer no evidence' against the first accused and moved for his acquittal of the two charges. Although, the learned counsel equivocated in her statement of 'offering no evidence', it is not beyond court's comprehension that the real reason to apply for acquittal of the first accused was the obvious involuntariness of his confession; and, the unfairness he suffered at the hands of the police in not referring him to medical examination.
   
5. Be that as it may, the prosecution proceeded with the voir dire against the second accused after the first accused's acquittal of the two charges.
   
6. Evidence against the second accused was that he was arrested by Detective Cpl. 2708 Elia Waqasoqo around 07.00 a.m. on 02 December 2008 from his residence at Field Forty in Lautoka. Witness-Waqasoqo said that the second accused had injuries on his face including those on cheeks, the chin and a black eye on the left. The witness sought to attribute the cause of the injuries to a previous night brawl, the second accused was said to have had, while drinking with his friends. Answering cross-examination, the witness admitted that he had not recorded the presence of any injuries on the second accused at the time of the arrest or the cause for such injuries. Nor had the witness made any reference to such injuries being observed at the time of the arrest, when he gave a statement on 02 December 2008 relating to the arrest.
   
7. Detective Cpl. 2229 Tamani Laisiasa, however, caution-interviewed the second accused from 12.00 noon on 02 December 2008 until 09.55 a.m. on 03 December 2008 without being satisfied on any basis that he [the second accused] was in a fit and proper condition to make confessions in the cautioned-interview statement marked MFI-2 (A) notwithstanding the injuries he sustained. Under cross-examination, witness admitted that he found no records to the effect that the second accused had suffered injuries before the arrest. The witness further admitted that the second accused had complained of a pain in a dislodged tooth, which required extraction; but, the interview proceeded without any medical attention being paid.
   
8. It is in light of this evidence that I need to apply the legal principles to decide on admissibility of the confession of the second accused to be led in evidence at the trial.
   
9. In the oft-cited case of Ganga Ram and Shiu Charan v R (FCA Crim. App. 46/1983; 13 July 1984; unreported), the test was lucidly formulated by the Fiji Court of Appeal as follows:
   

...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 beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as use of force, threats or prejudice or inducement by offer of some advantage-what has been picturesquely described as 'the flattery of hope or the tyranny of fear'. Ibrahim v R (1914) A.C. 599; DPP v Pin Lin (1976) AC 574.

Secondly, even if such voluntariness is established, there is also need to consider whether the more general ground of unfairness exists in the way in which the police behaved, ... falling short of overbearing the will, by trickery or by unfair treatment Regina v Sang [1979] UKHL 3; (1980) AC 402, 436 at C-E. This is a matter of overriding discretion and one cannot specifically categorize the matters which might be taken into account. ...

10. The prosecution failed to displace the possibility of the second accused being oppressed in view of the injuries that he suffered when he was giving the statement under caution. On the contrary, the evidence of the police witnesses for the prosecution, as shown above, was unsatisfactory and was affected by absence of contemporaneous notes to support their hypothesis that the second accused had suffered injuries before he was arrested.
    
11. The word 'oppression' in the context of deciding the voluntariness of a confession attracts the ordinary dictionary meaning as ruled by the English Court of Appeal in R v Fulling [1987] EWCA Crim 4; [1987] QB 426 at 432[1987] EWCA Crim 4; , 85 Cr. App. R. 136 at 142 to include:
    

'...exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors etc., or the imposition of unreasonable or unjust burdens.'

12. According to the evidence, the police hurried through the process of interview without any medical examination on the second accused and caused him to confess within a few hours from the point of arrest. In the circumstances, I hold that the second accused was oppressed or at least there is a reasonable doubt that he was oppressed, which the prosecution has failed to displace, when the alleged confessional statement marked MFI-2 (A) was obtained.
    
13. Having regard to the facts of this case, I apply the test laid down in the case of Ganga Ram and Shiu Charan v R (supra) by the Fiji Court of Appeal. Accordingly, I conclude that the evidence, as presented by the prosecution, has failed to establish that the confession of the second accused was voluntarily made. Instead, I hold that the alleged confession was obtained by police in an unfair manner; and, its admission in evidence would, in the circumstances, lead to occasion an adverse effect on fairness of the proceedings at the trial.
    
14. I, therefore, reject the cautioned-interview statement marked as MFI-2 (A) as being irrelevant. In the result, I rule out its admissibility in evidence at the trial against the second accused.
    
15. Facts of the case against the second accused, as set-out above, did not differ from the facts of the case against the first accused. In the latter case, learned counsel for the state opted to 'offer no evidence' and applied to court for termination of proceedings even after producing the first accused's alleged cautioned-interview statement as MFI-1 (A). Learned counsel for the state, however, remained obdurate that the inquiry against the second accused should proceed to an end despite obvious circumstances of involuntariness and unfairness in securing the confession. Her obduracy cost dear in terms of judicial time; and, also on fairness, as she failed to show a distinction between the two cases despite court's clarion call to do so.
    

Priyantha Nāwāna
Judge
High Court
Lautoka
06 March 2012

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