State v Maya [2012] FJHC 1052; HAC061.2008 (27 April 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CRIMINAL JURISDICTION]

HIGH COURT CRIMINAL CASE NO : HAC 061 OF 2008

BETWEEN:

STATE:
Prosecution

AND:

1. NOA MAYA
2. JOSEVA LUTUNATABUA
Accused

Counsel
State : Mr T. Qalinauci
Accused : In Person

Inquiry : 24-25 April 2012
Ruling : 27 April 2012

RULING [VOIR DIRE]

1. The two accused objected to the admission in evidence at the trial of the two separate statements alleged to have been made by them in the course of their interviews by police. The two statements were recorded upon their arrest on suspicion of commission of an offence of robbery in the household of one Prakash Chovan on 20 September 2007 in Lautoka for which they [the two accused] stood charged under Section 293 (1) (b) of the Penal Code. The value of the property alleged to have been robbed was in the region of $ 17, 000.00 according to the information of the Director of Public Prosecutions dated 08 September 2009.
   
2. The interview of the first accused-Noa Maya was conducted by Detective Corporal 1093 Sakuisa Yabia on 22 September 2007, while the interview of the second accused-Joseva Lutunatabua was conducted on 23 September 2007 by Detective Corporal Ana Nai. The two officers gave evidence at the voir dire and produced the two statements of the two accused marked as VE-2 and VE-4 (A). In their respective testimonies, the two officers asserted that the two statements were made by the two accused on their own free will.
   
3. The two accused, however, challenged the voluntariness of their statements, which were confessional in nature, alleging that they were assaulted, tortured and oppressed whilst in police custody forcing them to sign the statements. The two accused specifically alleged that, nobody-else other than the two individual officers who conducted the interviews, was present at the time of the alleged confessions were obtained and thereby flouted the normal police procedure of having an officer to witness the actual circumstances of recording a statement under caution.
   
4. Evidence of the two police officers, as well as the perusal of the alleged statements, show that it was indeed a case where the two officers have individually recorded the statements one-to-one with nobody-else in attendance to witness the manner and the form of recording the alleged statements under caution.
   
5. The first accused consistently maintained the position in the course of the cross-examination of his interviewing officer and in his [the first accused's] own testimony that he [the first accused] was subjected to assault and threats by the interviewing officer with an iron rod in the course of the interview.
   
6. The second accused-Joseva Lutunatabua giving evidence stated that he was forced to sign the statement after being beaten-up whilst in police custody. The second accused, too, specifically alleged that he was forced to sign the statement in oppressive circumstances, which was why there was nobody-else present in the course of the interview.
   
7. There were, however, no medical reports to substantiate the presence of any injuries on any accused; or, to support the fact that the accused were fit enough to make confessions.
   
8. The court, in the circumstances, is faced with the uphill task of balancing the evidence of two individual interviewing officers, who state that the statements were voluntary, with that of the two accused, who state that their statements were involuntary due to the oppressive circumstances that they were placed whilst in police custody in order to decide beyond reasonable doubt whether the confessions were, in fact, voluntarily made.
   
9. It is in these circumstances that I adopt the test laid down by the Fiji Court of Appeal in Ganga Ram and Shiu Charan v R (FCA Crim. App. 46/1983; 13 July 1984; unreported), which reads 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. It would also be relevant in this regard to note the observations made by Cave J. in Queen v Thompson [1893] UKLawRpKQB 74; (1893 2 QB 12) at 18, which reads:
    

I would add that for my part I always suspect these confessions, which are supposed to be the offspring of penitence and remorse, and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner's guilt is otherwise clear and satisfactory; but, when it is not clear and satisfactory, the prisoner is not unfrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession; -a desire which vanishes as soon as he appears in a court of justice. In this particular case there is no reason to suppose that Mr Crewdson's evidence was not perfectly true and accurate; but, on the broad, plain ground that it was not proved satisfactorily that the confession was free and voluntary, I think it ought not to have been received.

11. In Cleland v Queen (151 CLR) at 15, it was held that:
    

The voluntariness of a confession is suspect if it is obtained by interrogation rather than being volunteered, or if, although volunteered, the procedure involved interrogation; if the confessor was in custody, lawful or otherwise; or if anything suggests inducement by threats, promises, false representations or other trickery. Because of circumstances appearing from the evidence, a judge may treat a confession as suspect for involuntariness (even if this was not asserted by the accused because he denies making it).

If the accused was in custody the trial judge must be satisfied that, notwithstanding that the accused was under the control of the police or other custodians, the confession was voluntary. If there is suspicion of threats or other inducement, the judge must be satisfied that there were none, or that these did not operate by way of inducement.

12. At page 18, it was further held that:
    

At common law, a confessional statement is not admissible in evidence against an accused unless it be established that it was voluntarily made (see McDermott v. The King (1948) 76 CLR 511; R. v. Lee (1950) 82 CLR 144; Collins v. The Queen [1980] FCA 72; (1980) 31 ALR 257). If the making of such an alleged statement has been procured or influenced by unlawful or improper conduct on the part of law enforcement officers, that circumstance will be of relevance on the question whether the confession was voluntary. It will also, if it be established that the confession was voluntary, give rise to a subsequent question whether, in the discretion of the trial judge, evidence of the alleged confessional statement should be excluded for the reason that the reception of such evidence would be unfair to the accused: in this regard, the question is not whether the accused was treated unfairly; it is whether the reception of evidence of the confession would be unfair to him (see R. v. Lee and cf. McDermott v. The King (supra).

13. The prosecution in this case has not been able to displace what the two accused-persons alleged that there were subjected to threats and torture; and, that they were oppressed whilst in police custody leading to the making of confessions to the crime.
    
14. Evidence of the two accused-persons, instead, tilts the balance heavily, if not entirely, in favour of the two accused-persons that the two confessional statements were not voluntary in the absence of any acceptable and sufficient evidence by the prosecution to establish the contrary.
    
15. In the circumstances, I hold that the two statements of the two accused-persons are involuntary and they are inadmissible in evidence.
    

Priyantha Nāwāna
Judge
High Court
Lautoka
27 April 2012